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Where, on an application for the enforcement of a judgment after the expiration of five years from the date of its entry, the court ordered that the judgment be revived and enforced in the sum of $518.35, with interest from December 30, 1891, a further provision that the total amount due was $995.70, and that plaintiff should recover that amount from the defendant, should be construed merely as an adjudication of the amount of principal and interest then due, and not as requiring payment of interest on anything but the original amount. 7. EXECUTION-VARIANCE.

Where a revived judgment provided for the recovery of the original sum of $518.35, with interest from December 30, 1891, and recited the total as $995.70, an execution requiring the collection of the latter sum. "with interest on the whole thereof" from March 10, 1905, while irregular as requiring the collection of interest from that date on the interest then accrued, was not fatally defective.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, § 179.]


A specification in a notice of motion to withdraw an execution that there was a material variance between the judgment and the execution was insufficient to present an objection to the trial court that the execution was irregular, in that it provided for the collection of compound interest or justify a review thereof on appeal.



Where at the time an execution was granted on a judgment against two defendants one of them had died leaving no property, the other was not prejudiced by the fact that the court did not revive the judgment and authorize execution against the deceased defendant's estate.

In Bank Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge. Action by Annie Doehla against T. F. Phillips. From an order granting plaintiff's application for leave to issue execution for the enforcement of a judgment in her favor after the expiration of five years from the entry thereof, defendant appeals. Affirmed.

John W. Kemp, for appellant. Louis Luckel, for respondent.

ANGELLOTTI, J. These are appeals from an order directing the enforcement of a judgment as against appellant, and from an order denying a motion to recall the execution and vacate the former order.

The judgment was made December 30, 1891, and entered December 31, 1891, in favor of plaintiff and against appellant and one Carrie D. Phillips, for $518.25, then due under the terms of a promissory note given by the defendants as joint makers. Nothing was done in the matter of enforcing said judgment until March 10, 1905, when ex parte application was made to the superior court for an order allowing the enforcement thereof.

The affidavit of plaintiff was filed on

said application. This affidavit showed that no part of the judgment or interest thereon has ever been paid, and that such judgment is wholly unsatisfied. The court thereupon, without notice to appellant, made an order which is substantially one under section 685, Code Civ. Proc., allowing the original judgment to be enforced and carried into execution for the amount then due, as against appellant. An execution was accordingly issued on March 14, 1905. On April 12, 1905, appellant gave notice of his motion to vacate said order and recall said execution on various grounds, which will be noticed hereafter so far as may be necessary. The motion was heard upon the records and the affidavits of plaintiff and appellant. The affidavits before the superior court showed without conflict that the judgment was wholly unsatisfied, that the note upon which the judgment was based was given for money loaned to appellant, and that the other defendant, Carrie Phillips, had died without leaving any property. They were also sufficient to sustain a conclusion that plaintiff is the owner of the judgment, and that she did not know until about March 6, 1905, that either of the defendants owned any property except a certain lot of land which was protected from execution by a homestead declaration. The affidavits failed entirely to show any prejudice resulting to appellant from the delay in enforcing the judgment, of which he can rightly complain.

Prior to the amendment of section 685, Code Civ. Proc., a judgment for the recovery of money could not be revived or enforced in any way after the expiration of five years from the time the judgment became final. Section 681, Code Civ. Proc., restricted the absolute right to an execution to the five years after entry of judgment, the time with. in which an action could be brought upon a judgment was fixed at five years by our statute of limitations (section 336, Code Civ. Proc.), the writ of scire facias had been abolished (section 802, Code Civ. Proc.), and section 685, Code Civ. Proc., authorizing the judgment to "be enforced or carried into execution after the lapse of five years from the date of its entry," was, by its terms, applicable only to cases "other than for the recovery of money." By amendment taking effect March 9, 1895 (St. 1895, p. 38, c. 33), section 685 was made to read as follows: "In all cases, the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, or by judgment for that purpose, founded upon supplemental pleadings; but nothing in this section shall be construed to revive a judgment for the recovery of money which shall have been barred by limitation at the time of the passage of this act." The only change made by this amendment in the original section tion was the striking out of the words "oth

er than for the recovery of money" after the words "In all cases," and the addition of the proviso as to judgments for money barred by limitation at the time of the adoption of the amendment. The effect of this change was to make the section applicable to every character of case, including actions for the recovery of money.

As has been seen, the judgment here was entered prior to this amendment, but it was not at the time of the passage thereof barred by limitation. It is urged that the amendment should not be held to apply to any judg ment for money rendered before its adoption. There can be no question as to the power of the Legislature to make it applicable to all judgments already rendered, and not barred by limitation at the time of their action. The constitutionality of statutes establishing or altering a period of limitation as to contracts then in force is beyond question. Subject always to the limitation that a reasonable time must be allowed for prosecuting a proceeding after the passage of an act establishing or shortening such a period, the power of the Legislature is absolute in such matters. There is in such legislation no forbidden impairment of the obligation of any contract. As said in Terry v. Anderson, 95 U. S. 628, 24 L. Ed. 365, the parties to a contract "have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced, and, as to the forms of action or modes of remedy, it is well settled that the Legislature may change them at its discretion, provided adequate means of enforcing the right remain." It was said by this court in Swamp Land District v. Glide, 112 Cal. 85, 44 Pac. 451, that "a man has no vested right in the running of the statute of limitations until it has completely run and barred the action." See, also, 19 Am. & Eng. Ency. of Law (2d Ed.) pp. 167, 168, 171. We think it equally clear that the amendment to section 685 was intended to be applicable to all judgments not then barred by limitation. In addition to the inclusive character of the language used, we have the proviso excepting judgments for the recovery of money then barred by limitation, The making of this sole exception under wellsettled rules of construction excludes any other exception, and leaves the amended section applicable to every judgment not included within the exception made. In the case of Mann v. McAtee, 37 Cal. 11, cited by appellant, the question before the court was as to whether section 214 of the practice act as enacted in 1866 (St. 1865-66, p. 704, c. 534), which was the same as section 685, Code Civ. Proc., prior to the amendment, was applicable in the case of a judgment barred by limitation at the time of the enactment of the section. The court said that it could not believe that the Legislature intended in reviving section 214 in its amended form to give new vitality to old judgments long since defunct, and the remedy on which had already been

barred by the lapse of time, and therefore construed the act as prospective only in operation, and applicable only to judgments thereafter to be rendered. The distinction between that statute and the one now under consideration is that in the latter there is a provision excepting one class of judgments already rendered, viz., such judgments as are already barred, as was the one involved in Mann v. McAtee, supra, which obviously shows that the amendment was intended to apply to all other judgments already rendered. In Pignaz v. Burnett, 119 Cal. 157, 51 Pac. 48, also cited by appellant, the amendment shortening the time within which an appeal might be taken from 12 to 6 months was construed as not intended to be retrospective in effect. No time whatever was given by this amendment to appeal in those cases in which judgments had been entered for six months or more. The court said that, unless it was absolutely necessary, no intent to thus cut off the right of appeal from judgments already given should be attributed to the Legislature, and concluded that such intent did not necessarily appear. Neither of these cases is applicable


It is further claimed that, conceding the applicability of section 685 to money judgments rendered before the passage of the amendment, the relief thereby afforded is barred in this case by the provisions of section 343, Code Civ. Proc., which provides: "An action for relief not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued." We are satisfied that neither this nor any other section of our general statute of limitation is applicable to the procedure contemplated by section 685, Code Civ. Proc. That procedure constitutes neither an "action" nor a "special proceeding of a civil nature" within the meaning of those terms as used in such statute, nor is it in the nature of either. It is a mere subsequent step in an action or special proceeding already commenced, which is governed entirely, so far as the time within which the same may be taken is concerned, by the provisions of the statute specially relating thereto. No limitation of time whatever is prescribed by such provisions; the plain effect of section 685, Code Civ. Proc., being to empower the court to authorize the issuance of an execution upon a judgment at any time after its entry; the time within which the court may so act being without limitation. This was the view expressed by this court in Harrier v. Bassford, 145 Cal. 529, 532, 78 Pac. 1038, where the question. was not directly involved. Section 336, Code Civ. Proc., in the general statute of limitations, provides the period within which an independent action may be commenced on a judgment, an action in which the plaintiff upon proving his judgment and its nonsatisfaction is entitled, as a matter of right, to a new judgment. It has no relevancy to the question under consideration here. It may

be argued that it is inconsistent that a judgment which is barred by limitation so far as the maintenance of a new action thereon is concerned can, by leave of the court, be enforced by execution, but the Legislature may so provide, and we cannot construe the language of the statute before us otherwise than as showing such provision. Courts are not authorized to make exceptions not reasonably sustainable by the language of a statute. As we have seen, the only exception made by the statute is as to judgments barred by limitation "at the time of the passage of this act." What was said in Merguire v. O'Donnell, 139 Cal. 6, 72 Pac. 337, 96 Am. St. Rep. 91, as to the applicability of section 343, Code Civ. Proc., to the remedy provided by section 708, Code Civ. Proc., the revival of a judgment in the name of the purchaser at sheriff's sale thereunder where he has failed to recover possession of the property purchased in consequence of irregularity in the proceedings, etc., was dictum. The question there presented was as to the applicability in such a case of section 336, Code Civ. Proc., the five-year statute as to judgments, which period had elapsed. The court, in holding the purchaser entitled to the relief sought, declared that it had no application, saying: "There is nothing to indicate that the Legislature intended to control the effect or operation of section 708 of the Code of Civil Procedure, or the remedy under it, by said section 336." So far, at least, as section 685, Code Civ. Proc., is concerned, the same is undoubtedly true as to section 343, Code Civ. Proc. The order for execution is not invalid for want of previous notice of the application. The statute does not require any notice to be given, and the failure of the statute to require notice does not render it void. This is settled by at least two decisions of this court, in each of which the question was directly presented for determination. Bryan v. Stidger, 17 Cal. 270; Harrier v. Bassford, supra. As was pointed out in Bryan v. Stidger, supra, if the defendant has a good defense, or any cause to show against the enforcement of process, he has a plain and speedy remedy in a motion to vacate the order and recall the execution.

We see no force whatever in the contention that in making the order for the issuance of the execution, under the circumstances here appearing, the lower court was guilty of an abuse of the discretion confided to it. Admittedly the judgment, which was for money loaned to the appellant, had never been satisfied in whole or in part, and no reason whatever appeared why, in equity and good conscience, he should not be compelled to pay the same. The failure of plaintiff to earlier enforce the judgment which appellant should and could have at any time voluntarily paid was entirely without prejudice to any of his legal rights, and did not render the granting of the order an abuse of discretion. Under such circumstances it would appear that the

exercise of a sound discretion would require the enforcement of the judgment. Wheeler v. Eldred, 121 Cal. 28, 53 Pac. 431, 66 Am. St. Rep. 20, relied on by appellant, was a case where there was no question as to whether there had been an abuse of discretion, the sole contention there being that the court had no discretion to refuse to grant an application under section 685, Code Civ. Proc., for the execution of a decree of foreclosure as to real property, where the decree had not been executed. The court held that the statute was permissive as regards the power given to the court in actions where title to real property is involved, "and that the court must determine in the exercise of a sound discretion whether the dormant judgment shall be enforced." It may be conceded for the purposes of this decision that this is equally true as to judgments in cases not involving title to real property.

What we have said upon the claim as to abuse of discretion sufficiently disposes of the claim that plaintiff was not entitled to the remedy afforded by section 685, Code Civ. Proc., for the collection of his judgment, by reason of laches.

As contended by appellant, the lower court had no power without notice to enter a new judgment against him, but we do not read the order made on March 10, 1905, as doing this. It is ordered thereby "that the said judgment be revived and enforced

in the sum of $518.35, with interest from December 30th, 1891." The further provision therein, "that the total amount now due is the sum of $995.70, and that plaintiff do recover of and from said named defendant the said sum of $995.70," was evidently intended simply as an adjudication of the amount of principal and interest then due, and for which execution should issue, and cannot reasonably be construed as requiring payment of interest on anything but the original $518.35. The amount so named was a trifle less than the amount due, as à calculation will demonstrate.

The execution as issued, however, requires the collection by the sheriff of said sum of $995.70, with interest on the whole thereof from March 10, 1905. In this respect the execution was not in accord with the order or judgment, requiring, as it did, the collection of interest from March 10, 1905, on the interest that had accrued on that date. This variance as to the amount to be collected did not, however, render the execution void, but only irregular. 1 Freeman on Execution, § 43; Hunt v. Loucks, 38 Cal. 372, 99 Am. Dec. 404. The only specification in the notice of motion touching the matter was the general specification that there is a terial variance between the judgment and the execution heretofore issued pursuant to the said order of this court, and it does not appear that any more particular specification was made on the hearing in the court below. This was not a sufficiently definite

specification to bring the matter now complained of to the attention of the lower court and the adverse party at a time when the same might perhaps have been remedied and plaintiff's lien saved for the proper amount due, and we are of the opinion that the appellant should not now be heard upon that matter here.

It is urged that the court had no right to direct the enforcement of the judgment against the appellant without doing the same as to his codefendant. Passing without deciding other arguments made in support of this action of the lower court, it is sufficient to point out that appellant could not be prejudiced thereby in view of the fact that the codefendant had died, leaving no property. The orders appealed from are affirmed.


(151 Cal. 497)

BREDFIELD v. HANNON et al. (L. A. 1,890.)


Where plaintiff obtained leave to have execution issued on a judgment, and defendant filed an affidavit on motion to set aside the order, the court properly permitted plaintiff to file a counter affidavit at the hearing without previous notice or service on defendant; her remedy being an application for time to file an affidavit in rebuttal if desired.

[Ed. Note. For cases in point, see Cent. Dig. vol. 35, Motions, § 42.]

In Bank. Appeal from Superior Court, Los Angeles County; G. A. Gibbs, Judge.

Action by Jennie Bredfield against J. Hannon and others. From an order granting plaintiff's application for execution on a judgment in her favor, defendant Laura Hannon appeals. Affirmed.

Valentine & Newby, for appellant. F. B. Guthrie, for respondent.

SHAW, J. On September 26, 1891, the plaintiff recovered judgment in the superior court against J. Hannon, Laura Hannon, and E. W. Reid, for $560. Nothing was paid on the judgment, and thereafter, on June 19, 1905, upon application of plaintiff, made without notice to the defendants, or either of them, the court made an order that an execution issue upon the judgment against the defendants, and upon the same day an execution was issued in accordance with the order. Thereafter, upon notice duly given, the defendant Laura Hannon moved the court to set aside the order for the issuance of the execution. The motion came on for hearing upon affidavits and a counter affidavit, and was denied by the court. From this last order, the defendant Laura Hannon appeals.

It is not claimed that the judgment has

been paid. At the time it was rendered and for a long time afterward, the defendants had no property, and the issuance of an execution would have been fruitless and would have entailed useless expense. The plaintiff did not discover that the defendant Laura Hannon had acquired any property until a short time before the execution was issued. The following propositions are established in the case of Doehla v. Phillips (this day decided) 91 Pac. 330: (1) The amendment of 1895 to section 685 of the Code of Civil Procedure, whether technically retroactive, as that word is used in section 3, Code Civ. Proc., or not, is applicable to all judgments then existing, and not barred by the statute of limitations at the time the amendment was passed. (2) Notice to the defendants of the time and place of the hearing of the motion for leave to have the execution issued was not necessary. See, also, Harrier v. Bassford, 145 Cal. 532, and Bryan v. Stidger, 17 Cal. 270. (3) The general statutes of limitations apply only to actions and to special proceedings of a civil nature, and they do not apply to motions of this character, under section 685, for leave to issue an execution. The right to make the motion was not barred by any of the provisions of the statute of limitations. (4) The amendment does not impair the obligation of contracts and is not unconstitutional. (5) No abuse of discretion by the court is shown, nor did the delay, under the circumstances, constitute such laches on the part of the plaintiff as to defeat her right to the execution. We will add that there was no error in permitting the plaintiff at the time of the hearing to file a counter affidavit without previous notice or service upon the defendant. If the defendant so desired, she might have asked for further time to file an affidavit in rebuttal, and, if good reason for delay was shown, doubtless the court would have given her time. She did not make any application.

These propositions are decisive of this case, and fully support the action of the court below. We refer to Doehla v. Phillips for a full discussion of the above questions. The order is affirmed.


(151 Cal. 517)

(Cr. 1,314.) July 17, 1907.)


Pen. Code, § 1475, as amended by St. 1907, c. 286, p. 560, provides that, if a prior writ of habeas corpus has been returned or made returnable before a district court of appeal or any justice thereof, no writ shall be issued on a second or other application, except by the Supreme Court or some justice thereof returnable before the Supreme Court or some justice thereof

Held that, if a single justice of a District Court of Appeal has remanded a prisoner on habeas corpus, a single justice of the Supreme Court may not overrule such decision on the return of a new writ issued by him, but the new writ, if issued at all. must be made returnable before the Supreme Court in banc.

Habeas corpus on petition by J. P. Mogenson before the Chief Justice of the Supreme Court. Writ denied.

See 90 Pac. 1063.

A. H. Jarman, for petitioner. R. R. Bell,

justices, had been consulted beforehand. The evil consequences of this practice were, not alone the interruption to more important business of the court, but the unnecessary expense to counties involved in the production of prisoners at the bar of the court in response to writs issued upon petitions insufficient on their face and often utterly frivolous in the light of the facts developed at the hearing.

In view of these inconveniences, it was

City Atty., and Beasley & Fry, for respond- long ago agreed among the members of the


BEATTY, C. J. The petitioner was convicted upon a charge of violating an ordinance of the town of Los Gatos prohibiting the sale of intoxicating liquors. He sued out a writ of habeas corpus from the District Court of Appeal for the purpose of testing the validity of the ordinance. the sufficiency of the complaint to state a case within the terms of the ordinance, and the sufficiency of the judgment to show a conviction of the offense, if any offense was charged. After a hearing upon the return of the writ that court, in an opinion filed May 27, 1907, overruled all the objections to the validity of the ordinance and the regularity of the proceedings under it, and remanded the prisoner to the custody of the sheriff of Santa Clara county, by whom he was detained in execution of the judgment. 90 Pac. 1063. Subsequently a petition was presented to me, based upon the same objections to the legality of the imprisonment that had been considered and overruled by the District Court of Appeal. Counsel, however, in presenting the petition to me, as Chief Justice of the Supreme Court. did not intend or expect that I should by myself review and overrule the decision of the District Court of Appeal. His desire and request was that I should issue the writ and make it returnable before the court in banc, as I have the power to do under section 4 of article 6 of the Constitution, and section 1475 of the Penal Code. See section as amended March 18, 1907. St. p. 560, c. 286.

For the future guidance of the profession in similar cases, I have deemed it important to state the reason why this course was not pursued. The authority of one justice of this court to make a writ of habeas corpus issued by himself returnable before the whole court was formerly exercised with great freedom― so much freedom, indeed, as to result in a serious detriment to the more important business of the court. It was a favorite method with certain practitioners to present their petitions to some one justice, and often to several different justices in succession, asking for a writ returnable before the court, and, if they could get the writ allowed in that way, the whole court would be compelled, on the day named in the writ, to drop all other business for the purpose of hearing the return to a petition which would never have been granted if the court, or a quorum of the

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court that, if a petition was addressed to one justice, he should, if he issued the writ, make it returnable before himself and not before the court, and that, if the party desired a hearing before the court, he should be required to address his petition to the court, so that a majority of the justices could determine whether, upon the matters alleged, it was proper to issue the writ at all, and, if so, when the matter could be conveniently heard. Ever since this agreement was reached I have consistently adhered to the practice indicated. But long as the practice has prevailed it seems not to have been generally understood, and petitions are still, in many instances. addressed to the Chief Justice alone, with the expectation of having a hearing before the court. Heretofore such mistakes have not involved any serious trouble or inconvenience, as they could always be corrected by merely changing a few words in the caption of the petition. But since the amendment to section 1475 of the Penal Code, above cited, it has become more important that the practice in these cases should be generally understood. The effect of that amendment, as I understand it, is to put an end to the practice heretofore prevailing of going from one judge to another of no greater authority, with the same petition for a writ of habeas corpus, in order to secure from one relief that has been denied by another. Among its provisions is the following: "In the event. however, that the prior writ was returned or made returnable before a District Court of Appeal, or any justice thereof, no writ can be issued upon a second or other application except by the Supreme Court or some judge thereof, and such writ must be made returnable before said supreme court or some judge thereof." As I construe this clause of the section, it does not mean that after the District Court of Appeal has, by the unanimous decision of the three judges, remanded a prisoner on habeas corpus, a single justice of this court may issue a new writ upon a similar petition, returnable before himself, and, upon the hearing, overrule the decision of the District Court of Appeal and discharge the prisoner. It means only that, when a single judge of the District Court of Appeal has remanded a prisoner, a single justice of this court may overrule his decision upon the return of a new writ issued by him, but, when the order of remand has been made by the District Court of Appeal,

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