BUTCHER v. BROUWER

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District Court of Appeal, Second District, Division 2, California.

BUTCHER v. BROUWER.

Civ. 13238.

Decided: January 27, 1942

George Acret, of Los Angeles, for appellant. Emmett A. Tompkins, of Los Angeles, for respondent.

From an order directing that an execution issue pursuant to section 685 of the Code of Civil Procedure, more than five years after the entry of judgment, defendant John C. Brouwer appeals. The order was granted upon the motion of Sally Williams, the assignee of a money judgment in favor of plaintiff.

So far as material here these are the essential facts:

January 10, 1929, the appealing defendant was adjudicated a bankrupt. June 27, 1929, plaintiff obtained a default judgment against appealing defendant in the sum of $2,082.22, together with costs amounting to the sum of $22. Thereafter partial payments in the sums of $485.21 and $165.18 were made upon the judgment. December 16, 1932, the judgment was assigned to Sally Williams. On the same day a writ of execution was issued and caused to be levied upon the property of John C. Brouwer, the appealing defendant. Thereafter Mr. Brouwer applied to this court for a writ of mandate requiring the superior court to quash the writ of execution which had been issued. This court issued such an order and also ordered the superior court “to desist from all attempt to enforce” the judgment “against petitioner John C. Brouwer until he is finally either granted or denied a discharge as a bankrupt in the bankruptcy proceeding now pending, and until the proper presentation of proof of such final grant or denial to” the superior court. (Brouwer v. Superior Court, 130 Cal.App. 163, 168, 19 P.2d 834.)

February 6, 1933, a special master heard the application of appealing defendant for his discharge in bankruptcy and made and filed a report recommending that such application be denied. His report contained the following findings:

“(1) That said bankrupt committed an offense punishable by imprisonment, as provided by said Bankruptcy Act, in that said bankrupt made a false oath and rendered a false account in and in relation to this proceeding in bankruptcy, in that he knowingly and fraudulently omitted from schedule B and from his schedules in bankruptcy, a statement of his ownership of an equitable interest owned by him in said Chrysler automobile.

“(2) That said bankrupt committed an offense punishable by imprisonment, as provided by said Bankruptcy Act, in that the bankrupt knowingly and fraudulently concealed from M. L. Rabbitt, his trustee in bankruptcy, duly appointed on the 31st day of January, 1929, and duly qualified on the 4th day of February, 1929, his said equitable interest in said Chrysler automobile, and further find that on examination of said bankrupt, he stated that he did not own any interest in said automobile and continued to so make said claim for some considerable time after the qualification of said trustee herein.

“(3) That said bankrupt committed an offense punishable by imprisonment, as provided in said Bankruptcy Act, in that said bankrupt knowingly and fraudulently concealed from his trustee in bankruptcy, duly appointed on the 31st day of January, 1929, and duly qualified on the 4th day of February, 1929, the sum of $600.00, and in this respect, that at the time of the filing of the petition in bankruptcy herein, and at the time of the adjudication herein, said bankrupt was the owner of the sum of $600.00, and that he knowingly and fraudulently failed to list same in the schedule of his assets and failed to turn the same over to his said trustee in bankruptcy for some considerable time after the qualification of said trustee, and further find that in an examination in open court he stated that he did not have any money or property other than listed in his schedules.”

This report was confirmed on February 27, 1933, by the United States District Court, and, no appeal having been taken therefrom, the order became final and a copy of the order was filed in the Superior Court of Los Angeles County May 19, 1933.

September 30, 1940, plaintiff's assignee instituted the present proceeding, which resulted in the trial court's making an order on March 5, 1941, directing the issuance of a writ of execution against the property of the appealing defendant.

It is necessary for us to determine two questions, which will be stated and answer hereunder seriatim.

First: Is it a prerequisite for an order for the issuance of a writ of execution pursuant to the provisions of section 685 of the Code of Civil Procedure that the judgment creditor file an affidavit showing reasons for his failure to proceed under section 681 of the Code of Civil Procedure before the judgment became outlawed by the limitation in subdivision 1, section 336 of the Code of Civil Procedure?

This question must be answered in the negative. Section 685 of the Code of Civil Procedure as amended in 1933 reads 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, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion.” (Italics added.)

It is the law in California that the italicized portion of the foregoing provision of the Code of Civil Procedure means that the failure of the judgment creditor to file an affidavit setting forth the reasons why he has not proceeded in compliance with the provisions of section 681 of the Code of Civil Procedure, that is, his not having caused to be issued an execution within the period of five years after the entry of judgment, does not deprive the trial court of power to order the issuance of a writ of execution after five years has elapsed from the date of the entry of judgment, but that the failure to file such an affidavit will constitute a valid reason for denying the application for a writ of execution. (Peers v. Stoll, 32 Cal.App.2d 511, 513, 90 P.2d 119 (a hearing was denied by the Supreme Court in this case); McClelland v. Shaw, 23 Cal.App.2d 107, 110, 72 P.2d 225, et seq.; see, also, Passow v. Bell, 27 Cal.App.2d 360, 361, 81 P.2d 224.)

The majority opinion in Williams v. Goodin, 17 Cal.App.2d 62, 61 P.2d 507, does not state a contrary rule. In Williams v. Goodin the trial court had denied a motion for the issuance of a writ of execution after more than five years had elapsed from the date of the entry of the judgment. Therefore, if we assume that in such case there was no showing by the judgment creditor of the reason for his failure to have a writ of execution sooner issued, the trial court's action was merely in accordance with the provisions of section 685, supra, to the effect that the failure to file a proper affidavit “setting forth the reasons for failure to proceed in compliance with the provisions of section 681” of the Code of Civil Procedure, shall constitute sufficient reason for the denial of the application for a writ of execution.

Second: Did the trial court abuse its discretion in ordering the issuance of a writ of execution, where the evidence disclosed that the judgment creditor for seven and one–half years failed to take any steps to collect the judgment, during which time the appealing defendant and his wife co–mingled their community property with the wife's separate property and incurred a personal indebtedness amounting to $17,000 in connection with such property?

This question must also be answered in the negative and is governed by the following pertinent rules of law:

(1) That the judgment debtor has had property subject to execution during the five–year period following the entry of judgment is not a ground for refusal of an order for the issuance of a writ of execution pursuant to the provisions of section 685 of the Code of Civil Procedure. (McClelland v. Shaw, 23 Cal.App.2d 107, 113, 72 P.2d 225.)

(2) The mere lapse of time is not a sufficient reason for denying an order for the issuance of a writ of execution pursuant to section 685, supra (McClelland v. Shaw, supra, 23 Cal.App.2d page 111, 72 P.2d 225).

The facts in the instant case disclose that the judgment creditor allowed seven and one–half years to pass, during a portion of which time the judgment debtor possessed property upon which an execution might have been levied. Under the rules above stated it is clear that these facts alone would not have justified the trial court in denying plaintiff's assignee an order under the provisions of section 685, supra. So far as appears from the record, the delay upon the judgment creditor's part operated in favor of appealing defendant rather than to his detriment.

Since the appealing defendant has presented a stipulation in this court waiving the question presented in Butcher v. Brouwer, 48 Cal.App.2d 650, 120 P.2d 506, 510, in which case we granted a rehearing, the matter there considered is not discussed in this opinion.

For the foregoing reasons the order is affirmed.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concurrred.