Keil v. Gray

C. C. KEIL, Appellant, v. HENRY GRAY, Respondent.

COUNSEL

Liggett & Liggett for Appellant.

Arthur H. DeRiemer for Respondent.

OPINION

Thompson (Gordon), J., pro tem.

This is an appeal from an order denying a motion to issue execution more than five years after judgment.

On May 23, 1927, plaintiff recovered judgment against defendant in the sum of $543.98, besides costs. The judgment was based on a claim assigned to plaintiff by the Standard Oil Company of California.

Execution on the judgment was issued on May 29, 1927. On affidavit of one of the attorneys for plaintiff, defendant was required to appear for supplemental examination on October 21, 1930.

On December 6, 1937, plaintiff filed a notice of motion to issue execution on the judgment. Among other things, the supporting affidavit recited that the judgment was wholly unpaid. Defendant filed a counter-affidavit in which it was stated that the claim of the Standard Oil Company of California had been paid in full. Plaintiff filed no counter-affidavit.

[1] It is thoroughly settled in California that the granting or denying of a motion to issue execution after five years from the date of its entry (sec. 685, Code Civ. Proc.) is within the sound discretion of the trial court; that such discretion must "be exercised in conformity with the spirit of the law and in a manner to subserve and not impede or defeat the ends of substantial justice". (Bailey v. Taaffe, 29 Cal. 422; McClelland v. Shaw, 23 Cal. App. 2d 107 [72 PaCal.2d 225]; Faias v. Superior Court, 133 Cal. App. 525 [24 PaCal.2d 567]; Wheeler v. Eldred, 121 Cal. App. 28 [53 P. 431, 66 Am.St.Rep. 20].)

The record presents the familiar condition of a conflict in the evidence, which the trial judge resolved against the plaintiff. Plaintiff swore the judgment had not been paid. Defendant swore that the claim had been fully paid. The trial judge accepted defendant's affidavit as true and impliedly found that plaintiff's assignor had been paid. That fact furnished sufficient ground for denial of the motion to [28 Cal. App. 2d 299] issue execution, in the exercise of a sound legal discretion by the trial judge. If the claim had been paid no execution should issue.

Order affirmed.

Barnard, P. J., and Marks, J., concurred.