ANGELI v. LISCHETTI

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

Angela ANGELI, Plaintiff and Respondent, v. J. B. LISCHETTI, Defendant and Appellant, S. Johnson et al., Defendants. *

Civ. 19737.

Decided: March 20, 1962

Leonard P. Burke, Sacramento, for appellant J. B. Lischetti. Stephen L. Mana, San Francisco, for respondent.

On June 21, 1950, plaintiff obtained a money judgment against defendant J. B. Lischetti. On February 8, 1960, upon plaintiff's request, the clerk of the superior court issued a writ of execution upon said judgment. The writ was not issued by leave of court upon motion and affidavit pursuant to Code of Civil Procedure, section 685, but was obtained from the clerk as a matter of right under Code of Civil Procedure, section 681. A levy was then made upon certain real property of defendant, who moved the court to quash the writ. Defendant's motion was based on the ground that plaintiff's right to proceed by way of Code of Civil Procedure, section 681, was barred by lapse of time. Defendant appeals from the order denying his motion to quash.

When respondent obtained his judgment against appellant in June of 1950, the statutes then in force provided that an action upon a judgment might be brought within five years after entry of judgment (Code Civ.Proc. § 336). During the entire five-year period when an action could be brought, execution would issue as a matter of right (Code Civ.Proc. § 681). After the five years had expired, an action upon the judgment was barred (Code Civ.Proc. § 336). However, the judgment creditor, upon the showing of due diligence, might still have execution issued by leave of court (Code Civ.Proc. § 685). In Saunders v. Simms (1920) 183 Cal. 167 at pages 170–171, 190 P. 806 at p. 808, the court, in analyzing the operation of the two sections, stated: ‘Section 685 is a limitation upon the operation of the statute of limitations under section 336 of the Code of Civil Procedure to the extent that it places within the discretion of the courts the power to authorize the enforcement by the ordinary processes provided by law of a judgment otherwise barred by the statute.’ (See also Pacific Gas & Electric Co. v. Elks Duck Club (1940) 39 Cal.App.2d 562, 564, 103 P.2d 1030.) It was also stated that section 685 operated to ‘renew’ or ‘revive’ judgments barred by section 336. (Anderson v. Shaffer (1929) 98 Cal.App. 457, 459, 277 P. 185.)

Effective September 9, 1953, the five-year period of limitation for an action upon a judgment was extended to ten years, and became subdivision (3) of section 337.5, Code of Civil Procedure, and the provision for five years theretofore found in section 336 was removed. The result of this amendment was to extend respondent's right to bring suit upon his judgment for an additional five years because the judgment was still alive, and section 336 had not affected it in any way. (See Mudd v. McColgan (1947) 30 Cal.2d 463, 468, 183 P.2d 10, 13, where the court stated that ‘an amendment which enlarges a period of limitation applies to pending matters where not otherwise expressly excepted.’)

Although it amended sections 336 and 337.5 at its session in 1953, the legislature took no action with respect to section 681 or 685. However, in 1955 it did amend said last named sections, the amendments becoming effective September 7, 1955. The period during which execution would issue as a matter of right under Code of Civil Procedure, section 681, was extended to ten years and was thus made coextensive with the ten-year statute of limitations set forth by Code of Civil Procedure, section 337.5. Code of Civil Procedure, section 685, was correspondingly amended so as to require leave of court and a showing of due diligence only upon the expiration of the ten-year period of limitation.

The sole question before us is whether the 1955 amendments, which become effective more than five years after the entry of respondent's judgment, entitled respondent to an additional five years in which to obtain execution as a matter of right.

It is respondent's position that the legislature intended the 1955 amendments to sections 681 and 685 to apply to all judgments which were not barred by the statute of limitations (§ 336, and later § 337.5) at the time that the amendments became effective. In support of this theory, respondent relies by analogy upon Weldon v. Rogers (1907) 151 Cal. 432, 90 P. 1062, and Doehla v. Phillips (1907) 151 Cal. 488, 91 P. 330. In both of these cases, the plaintiffs had obtained money judgments in 1891. Under the statutes then in effect, the period of limitations applicable to actions brought upon judgments was five years, and execution pursuant to Code of Civil Procedure, section 681, would issue as a matter of right during this period. Upon the expiration of the five years, Code of Civil Procedure, section 685, provided that execution might issue upon leave of court ‘In all cases other than for the recovery of money * * *.’ Subsequently, in 1895, Code of Civil Procedure, section 685, was amended by omitting the words ‘other than for the recovery of money’ and by adding the following, ‘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 court held in the Weldon and Doehla cases that the 1895 amendment was intended to apply to all money judgments which were not yet barred by the five-year statute of limitations then in force. In so holding, the court stated: ‘[T]here is no doubt of the constitutional power of the Legislature to make the amendment. It was, in principle and effect, in the nature of an extension of the period of limitation of an action, and such extension is always valid when made before the former period of limitation had expired. A judgment debtor, or one against whom any cause of action exists, is subject to any change of the statute of limitations touching such judgment or other cause of action, if made before the action shall have been barred under the former law.’ (Weldon v. Rogers, supra, 151 Cal. at p. 434, 90 P. at p. 1063.) Since the amended act specifically provided that nothing in the section should revive a money judgment which had already been barred by the statute of limitations, the court concluded that such a provision ‘clearly shows that the intent of the Legislature was that it should apply to all judgments which had not been barred by the statute of limitations at the time of said amendment.’ (Weldon v. Rogers, supra, at p. 434, 90 P. at p. 1063; see also Doehla v. Phillips, supra, 151 Cal. at p. 492, 91 P. 330.)

Both of these decisions thus presented situations in which the intent of the legislature could readily be ascertained under ‘well-settled rules of construction.’ (See Doehla v. Phillips, supra, at p. 492, 91 P. 330.) In the case at bar, the 1955 amendments to Code of Civil Procedure, sections 681 and 685, provide no such convenient key to the interpretation of legislative intent, since both these amendments are limited to the substitution of ‘10 years' in place of ‘five years.’ Under these circumstances, the Weldon and Doehla decisions shed little light on the problem. Indeed, appellant has never asserted that the legislature was without power to make the amendments applicable to all judgments not barred by the statute of limitations. On the contrary, appellant's sole contention is that such an interpretation is unwarranted unless the intent to do so is clearly manifested. We believe appellant's position sound, and in accord with the general rule that ‘Statutes are never construed to have a retrospective effect, unless they were obviously so intended * * *’ (Mann v. McAtee (1869) 37 Cal 11, 14–15.)

We find nothing in the 1955 amendments to indicate that the legislature intended them to operate retroactively. However, we do find the action of the legislature, in 1957, when it further amended Code of Civil Procedure, section 685, to be of such character as to convince us that the 1955 amendments were intended to be prospective only in operation. Pursuant to the 1957 amendment, the following sentence was added to Code of Civil Procedure, section 685: ‘This section does not limit the jurisdiction of the court to order issuance of such writ prior to the lapse of said 10-year period in cases where the party in whose favor judgment is given is not entitled to a writ under Section 681 of this code.’ The only conceivable purpose of such an amendment would be to protect parties who, like respondent, were within the ten-year statute of limitation, but whose rights to proceed under section 681 had expired prior to the 1955 amendment thereto. Such a provision clearly reveals that it was not the intent of the legislature to make section 681 apply retroactively to revive rights which had already become barred under section 681 prior to its amendment. The legislature evidently foresaw the possibility that certain parties whose rights under section 681 had expired would conclude that section 685, as amended in 1955, required them to wait until the end of the ten-year period of limitation before seeking discretionary execution under section 685. On its face, section 685 does support such an interpretation, since it specifically provides that ‘In all cases the judgment may be enforced or carried into execution after the lapse of 10 years from the date of its entry, by leave of court * * *’ (emphasis added). Since the legislature was thus aware that a strict interpretation of section 685 would leave a party in respondent's position with no remedy whatever until ten years had expired after entry of judgment, the legislature undertook to clarify the situation through the 1957 amendment. If respondent were correct in his assertion that the 1955 amendment to Code of Civil Procedure, section 681, was intended to operate retrospectively, there would be no necessity nor indeed any logical purpose behind the enactment of the 1957 amendment to Code of Civil Procedure, section 685. Such was the view taken in 32 State Bar Journal 548 (1957), where the author, in discussing the 1955 changes to sections 681 and 685 in the light of the 1957 amendment to section 685, stated: ‘A 1955 amendment of § 681 changed from five to 10 years the period during which execution may issue upon a judgment as a matter of right. Section 685 was also amended to provide for the discretionary issue of execution after the lapse of 10 years rather than five [Citations.] The effect on judgments on which five years, but less than 10 years, had run at the effective date of these amendments was not clear. It would appear that the amendments would not revive the right to execution on such judgments (Mann v. McAtee, 37 Cal. 11 (1969)), and from the literal wording of the amendment the holder of such judgment would have to await the running of the 10 year period before he could seek discretionary relief. Under this [1957] amendment the holders of such judgments may seek discretionary execution before the lapse of the 10 year period, if they are not entitled to execution as a matter of right under § 681.’

For the foregoing reasons, the trial court erred in denying appellant's motion to quash the writ of execution.

Order reversed.

SHOEMAKER, Justice.

KAUFMAN, P. J., and AGEE, J., concur.

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