Shivell v. Hurd

WHITE, P. J. Plaintiffs and respondents secured a judgment in 1940 in the Superior Court of Los Angeles County, in the sum of $1,250, for damages to their home and for per[292]sonal injuries resulting from acts of the defendants, appellants herein, who, by the erection of artificial barriers across a natural watercourse on their property, caused storm water, earth and debris to be carried upon the property of plaintiffs, which property was located on a slope below the property occupied by defendants and appellants. The judgment was not paid, and on March 15, 1950, plaintiffs moved the court, upon notice, for the issuance of an execution despite the lapse of more than five years, pursuant to the provisions of section 685 of the Code of Civil Procedure, supporting said motion by an affidavit of plaintiff Arthur Shivell. Defendants opposed the motion by a counteraffidavit of defendant John Hurd. This appeal is from the order of the court directing that execution issue.

It is contended by appellants that “upon the basis of the facts which were presented, the trial court in granting the issuance of a writ of execution herein abused sound judicial discretion. ” The applicable rule is that a judgment creditor seeking to enforce a judgment more than five years after its entry must show that he exercised reasonable diligence to enforce his judgment during the statutory period in which he might have obtained a writ of execution as a matter of right; and whether he exercised such diligence is for the trial court to determine in its discretion, and its decision upon conflicting affidavits will not be disturbed. (John P. Mills Org., Inc. v. Shawmut Corp., 29 Cal.2d 863, 864, 865 [179 P.2d 570], and eases cited.)

The affidavit of plaintiff Arthur Shivell was to the effect that since the retirement of his attorney, Charles L. Bogue, in 1942, affiant in person and through his agents searched diligently but without success for assets of defendants ; that a supplemental examination of the judgment debtor John Hurd in June, 1942, disclosed no assets upon which to levy; that the said John Hurd had stated to affiant that he was “judgment proof.” “That affiant has made or caused to be made diligent search for stocks, bonds and savings or bank accounts and for earnings of defendants exceeding the amounts ruled upon in supplementary proceedings to wit :■ In November, 1943; July, 1944; July, 1945; May, 1946; September, 1947 and October, 1949.” It was further averred that the services of collection agencies and credit bureaus disclosed that personal property of defendants was continuously kept subject to chattel mortgages; that Motor Vehicle Department records, examined in 1945, 1947 and 1949, disclosed no