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


Civ. 15818.

Decided: April 29, 1954

Crist, Stafford & Peters, John M. Brenner, Palo Alto, for appellant. Forrest E. Macomber, Gordon J. Aulik, Stockton, for respondent.

This is an appeal from an order granting respondent's motion for an order that execution issue and for leave to file a creditor's claim.

On January 26, 1924, respondent Minnie C. Lobrovich (then Minnie C. Georgison) obtained an interlocutory decree of divorce from George Georgison. The decree ordered him to pay to her the sum of $6 per week for her support and also the sum of $6 per week for the support of Clifford Gregory Georgison, their minor child. A final judgment of divorce was entered on February 2, 1925, which incorporated the same orders. George Georgison died in May of 1952. In November of 1952, over twenty-eight years after the interlocutory decree, respondent filed and served a notice of motion for order that execution issue and for leave to file creditor's claim. This notice, and the supporting affidavit, were served upon the attorney for Helen Georgison, widow of George Georgison, and executrix of the esate of George Georgison. A hearing was had on this motion on December 15, 1952, and the Court made its order granting the motion for an order for execution to issue and also for leave to file a creditor's claim.

Helen Georgison, as executrix of the estate of George Georgison, has taken this appeal from said order.

It is appellant's contention that during the years following the interlocutory decree, respondent did not exercise due diligence in locating and levying upon property owned by her former husband, or in following available information to the point where a reasonable person would conclude that there was no property subject to levy. For this reason, the motion for leave to file the creditor's claim should not have been granted, and the granting of the motion constituted an abuse of discretion.

Appellant also contends that it was error for the Court to order execution to issue.

Evidence at the hearing on the motion consisted of respondent's affidavit and oral testimony of respondent and appellant.

In her affidavit respondent stated that following the entry of the interlocutory decree she had Mr. Georgison arrested and confined in jail for about one week during February and March of 1924, but received no money. Respondent remarried in February of 1925. After being in jail, Mr. Georgison went to Europe for a year, and after he returned to the United States she could not locate him again until 1939. During this time she made numerous attempts to locate him, but later learned that he had been using aliases. Apparently, her attempts to locate him consisted solely of making inquiries of friends and other people.

In regard to the allegation in the affidavit that Mr. Georgison had been using aliases, it developed at the hearing that respondent had no actual knowledge of this, but based her allegation on hearsay. The only names which it was proved that he used were Georgison and Mihaljevic. The name Mihaljevic was his original name—the name to which he was born—but he had changed it by the time he met the appellant.

In 1939 she located Mr. Georgison and he bought clothing for the boy valued at approximately $50. In addition, he paid her $15 per month from the summer of 1939 till August of 1941, when her son went in the Navy. She accepted this amount because she ‘figured it was better to take something than nothing at all.’

Appellant married George Georgison in 1925. Respondent first met appellant in appellant's San Francisco home in 1940. At that time respondent learned that Mr. Georgison had four homes in San Francisco. Whether she then asked Mr. Freitas, the Stockton attorney, to investigate, or whether it was prior to this, in 1939, is not clear. It does appear from respondent's affidavit that she contacted Mr. Freitas in an attempt to enforce payment of the amounts due for child support, apparently as distinguished from the payments long since overdue for her own support. Also, it is clear that she did not see Mr. Freitas at any time after 1940.

Respondent testified that Mr. Freitas told her that he could find nothing in Mr. Georgison's name. This is, of course, hearsay testimony, and presumably it is not to be accepted as a statement of fact, for this testimony was admitted only to show what efforts she made to collect.

After 1940 or 1941, respondent stated that she called Mr. Georgison two or three times a year on the telephone, but each time he said he had nothing. When she found out that Mr. Georgison was sick, in December of 1950, she thought that she had better leave him alone.

Respondent knew that Mr. Georgison moved from San Francisco to Sunnyvale, and that he lived in a rather nice home surrounded by an apricot orchard. Her sister-in-law lived in Sunnyvale, quite close to the Georgisons, but she never asked her sister-in-law what Mr. Georgison did. She did assume, however, that he repaired houses, which was what he had done before.

Respondent did not see Mr. Georgison at any time after 1944.

Appellant testified that Mr. Georgison used the name of Mihaljevic as well as Georgison. She testified that in 1940 respondent visited at the Georgison home in San Francisco, having come to see what they owned. Mr. Georgison admittedly showed her the four houses he owned and told her they were his. This property was in joint tenancy, and two of the houses were in the name of Mihaljevic and two were in the name of Georgison.

Respondent made no attempt to levy upon this property.

In 1948 the Georgisons move to Sunnyvale, where they lived till his death. Respondent's sister-in-law lived within five or six blocks of them, and they visited her frequently. In Sunnyvale, Mr. Georgison owned the house they lived in and a three acre apricot orchard, and one or two other houses. This property was in joint tenancy and in the name of Mihaljevic. It was owned free and clear.

Appellant testified that so far as she knew respondent did nothing to enforce the judgment, except to ask for support. From 1937 on, respondent asked just enough for clothing and $15 per month, and Mr. Georgison paid that until the boy joined the Navy.

The question presented on this appeal is whether the trial court abused its discretion in granting the motion for leave to file a creditor's claim and whether it was error to make an order that execution issue.

It is clear from the record that respondent in 1940 was told by the decedent debtor that he owned real estate; he showed respondent four houses that he owned; two of these houses were in the name of Georgison his original married name; no execution was ever levied by respondent on decedent's real estate; respondent knew where he lived but she never at any time checked the records of the tax collector, county recorder, or county assessor to ascertain what property decedent owned.

It is our view that the record fails to show that diligence on the part of respondent that is required by section 685, Code of Civil Procedure and that the trial court abused its discretion in granting the motion for leave to file a creditor's claim.

It is the law that a creditor, seeking to enforce a judgment more than five years after its entry, has the burden of showing he was not able to satisfy his claim within the statutory period during which he was entitled to a writ of execution as a matter of right. Butcher v. Brouwer, 21 Cal.2d 354, 358, 132 P.2d 205; Beccuti v. Colombo Baking Co., 21 Cal.2d 360, 132 P.2d 207.

An order authorizing a judgment creditor to enforce a judgment, more than five years after its entry by presenting a claim against the debtor's estate, may be made only if during the five years following entry of judgment, the creditor exercised due diligence in locating and levying on property owned by the debtor or in following available information to the point where a reasonable person would conclude that there was no property subject to levy within that time. Lohman v. Lohman, 29 Cal.2d 144, 173 P.2d 657; Di Corpo v. Di Corpo, 33 Cal.2d 195, 200 P.2d 529.

Here the record shows a complete lack of diligence on the part of respondent. Information imparted to her by the decedent debtor's own lips would have resulted in a levy and satisfaction of her claim had she acted on the said information given to her but on the contrary she sat idle and did nothing for twelve years from 1940, the date she acquired the information to 1952.

It is also argued that the order directing execution to issue is erroneous.

In addition to permitting respondent to file her claim against the estate, the Court also ordered that execution issue on the judgment. This latter order was definitely in error.

Probate Code section 732 provides in part: ‘When a judgment has been rendered against the testator or intestate, no execution shall issue thereon after his death, except as provided in the Code of Civil Procedure.’

Section 686 of the Code of Civil Procedure provides that upon the death of the judgment debtor execution may issue if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon. There is no provision for issuance of execution after death of the judgment debtor in circumstances such as are present in this case.

In Corporation of America v. Marks, 10 Cal.2d 218, 219, 73 P.2d 1215, 114 A.L.R. 1162, it was held that Probate Code section 732 requires a judgment against the decedent to be filed the same as other claims, and that the section also terminates the judgment creditor's right to execution levy and sale upon death of the judgment debtor, except where execution has been levied prior to death.

In view of this express law in California, there can be no question but that the order authorizing execution to issue must be reversed, with instructions to deny the motion for such order.

We conclude that the orders of the trial court herein do not find support either in the evidence in the record or in the law applicable thereto and accordingly both the order permitting the filing of the creditor's claim and the order authorizing issuance of execution after five years must be reversed.

Orders reversed.

KAUFMAN, Justice.

NOURSE, P. J., and DOOLING, J., concur.

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