HATCH v. CALKINS ET AL (1942)

Motion for leave to enforce judgment after five years under Code Civ.Proc. sec. 685. Defendant appeals from the order granting said motion.

Prior to November 14, 1906, a corporation had been formed, Calkins Newspaper Syndicate. Willard P. Calkins was president and W. F. Wilkie was secretary. On the date last mentioned the corporation sold to N. E. Scofield 7,000 shares. As a part of the transaction the following instrument was executed:

“Truckee Nov. 14, 1906

“Should N. E. Scofield desire it, and give us at least 10 days notice to that effect, we agree to redeem 7000 shares of the Calkins Newspaper Syndicate stock on July 1st, 1907, paying him $7000 therefor, together with any dividend that may be declared.

“W. F. Wilkie

“Willard P. Calkins.”

On June 18, 1907, said notice was given and the stock was tendered but Wilkie and Calkins did not pay any sum except $1,966.75. On February 3, 1909, N. E. Scofield filed an action for breach of contract. Defendants failed to appear at the trial though they had filed an answer. On May 27, 1911, a joint and several judgment was entered against them, providing that the plaintiff should have judgment for $5,591.43 plus costs. Scofield died in 1912; his wife and defendant Calkins died in 1929. On July 12, 1940, the administrator of Scofield's estate obtained an order to show cause why leave to enforce the judgment should not be granted. Defendant has appealed from the order granting plaintiff's motion.

The defendant contends that the judgment has been paid. He bases that contention on the assertion that there is, under the facts, a presumption to that effect. Gaines v. Miller, 111 U.S. 395, 4 S.Ct. 426, 28 L.Ed. 466. Conceding that such is the rule in some jurisdictions, it is not shown to be the rule in this state. Code Civ.Proc., sec. 1959. If such presumption exists it is not conclusive. Code Civ.Proc. sec. 1962. However, assuming for the purposes of this decision that the rule obtains in this state it is not determinative. It is an admitted fact that the defendant W. F. Wilkie never paid the judgment. If it was ever paid, it was paid by defendant Willard P. Calkins. If he paid it he had a claim against his codefendant for contribution. If he ever had such claim it is presumed he would have asserted it. Code Civ.Proc. sec. 1963, subd. 4. That statute provides it is presumed that a person takes ordinary care of his own concerns. But Calkins never asserted that he had such a claim. The record does not show on its face the judgment was paid nor that it has been satisfied. It is presumed that the record is complete. Code Civ.Proc. sec. 1963, subd. 17. That is, it is presumed that a judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties. Moreover, the record does not show that Willard P. Calkins at any time owned any property except his holdings in the Calkins Newspaper Syndicate. That corporation was declared bankrupt May 3, 1909. Mrs. Calkins obtained a divorce from her husband and was awarded alimony. In a proceeding in that action in 1909, Mr. Calkins testified he had no assets. On May 3, 1909, or prior thereto, he left San Francisco for the Orient and the defendant, W. F. Wilkie testified that he never heard of his whereabouts after that date. This action was commenced February 3, 1909. Judgment was entered May 27, 1911. Manifestly the trial court was authorized to weigh the conflicting presumptions and to hold that the evidence just recited showed the judgment had not been paid and in support of the order appealed from we must assume that it so held.

In his second point the defendant Wilkie contends the plaintiff is barred by his laches. He admits he has not paid the judgment but he asserts it is now over thirty years old, and, by reason of the delay of the plaintiff, the defendant has been deprived of the testimony of W. P. Calkins and N. E. Scofield to prove his defense, to–wit, that the judgment has been paid and he argues that it will be inequitable to enforce the judgment against him. Riley v. Blacker, 51 Mont. 364, 152 P. 758. No doubt such facts should be considered in determining the application of the doctrine of laches. But there is also another rule that is applicable. In 21 C.J. 237, “Equity,” sec. 230, the author says: “Lapse of time will not bar relief where circumstances exist which excuse the delay and render it inequitable to interpose the bar. There is no absolute rule as to what constitutes an excuse for an apparently unreasonable delay. It depends on the circumstances of the particular case and rests in the sound discretion of the chancellor, and the conclusion reached by him will not ordinarily be disturbed on appeal.” Bearing in mind that the chancellor has found the facts against the defendant and that the question is before this court on appeal to be reviewed, the question before us is whether the chancellor abused his discretion in not applying the doctrine. We think it is clear that it may not be said, as a matter of law, that he abused his discretion. Cahill v. Superior Court, 145 Cal. 42, 78 P. 467; Miller v. Ash, 156 Cal. 544, 105 P. 600; Title Ins. & Trust Co. v. Ingersoll, 158 Cal. 474, 111 P. 360; Taber v. Bailey, 22 Cal.App. 617, 135 P. 975. In Miller v. Ash, supra, the principles involved were closely the same. In 1862 Joseph Read and Catherine Read died leaving two children, Mrs. Miller and a brother, Robert Read. The defendant William Ash was appointed their guardian. A claim existed in favor of the minors against the estate of R. J. Reynolds, deceased. In 1863 the guardian compromised the claim for $4,000 and filed a receipt for that sum among the papers in the estate of R. J. Reynolds. The guardian never filed an account in the guardianship proceedings until the year 1906. Shortly thereafter he died. Robert Read died in October, 1905, leaving three sons surviving him. After the death of Ash, Mrs. Miller and the representatives of the estate of Robert Read commenced an action to compel an accounting by the representatives of the estate of Ash. It was claimed that the proceeding was barred by the laches of the plaintiff. That claim was carefully examined by the court and it was held that the doctrine of laches was not applicable as against the written receipt of Ash. So in the instant case we think it is clear that the doctrine is not applicable as against the judgment showing on its face that it has not been paid and has not been satisfied.

To support his contention that the plaintiff was barred by his laches, defendant introduced in evidence his own affidavit. It contains about sixty folios. Many allegations were made on information and belief. It contains numerous allegations of the places of residence, from time to time, of N. E. Scofield, of his wife, of W. P. Calkins, and of W. F. Wilkie. It contains numerous allegations of the occupations of, and the properties owned by W. F. Wilkie. And it contains numerous allegations of what N. E. Scofield knew, or should have known, from time to time, regarding said facts. Furthermore it contained arguments to the effect, and defendant now argues, that the plaintiff and his decedent were guilty of laches. To rebut the allegations of the defendant, the plaintiff offered several affidavits which were received in whole or in part. Some were expressly limited by the trial court. At this time the defendant quotes passages showing certain allegations were made on information and belief and contends he was prejudiced by such allegations. The record does not show that the trial court based its ruling on incompetent evidence. The memorandum decision of the trial court recites that its decision was based on the competent portion of said affidavits. As the hearing was had before the court it will be presumed that the court based its ruling on competent and not incompetent evidence. Roth v. Thomson, 40 Cal.App. 208, 216, 180 P. 656; Watt v. Copeland, 92 Cal.App. 161, 170, 267 P. 928; Ericson v. Steiner, 119 Cal.App. 305, 308, 6 P.2d 298; Farmers', etc., Nat. Bank v. Stowell, 6 Cal.App.2d 373, 378, 44 P.2d 392. Furthermore an examination of the affidavits discloses that some of the passages complained of were not objectionable for the purpose for which they were offered. Hester v. Western Life & Accident Co., 67 Mont. 286, 215 P. 508, 509; 20 Am.Jur. 404 “Evidence,” sec. 457.

Over the objections of the defendant, the plaintiff introduced in evidence excerpts from the pleadings in an action entitled Brownell v. All Persons. They showed that in 1904 Brownell placed on sale a tract of land near 17th Avenue and K Street in San Francisco; that the owner sold lots therein; among others the owner agreed to sell lot No. 5 to defendant under a contract of purchase. The complaint was filed May 4, 1909. On June 10, 1909, this defendant, W. F. Wilkie, and others, filed an answer admitting said contract agreement. On September 16, 1909, the court ordered a judgment entered which recited that on May 20, 1909, Brownell conveyed lot No. 5 to Laura E. Buckman as assignee of W. F. Wilkie. Laura E. Buckman was his mother–in–law. On July 7, 1911, she conveyed said lot to Elizabeth E. Wilkie, the defendant's wife. That deed was recorded April 19, 1918. The defendant asserts that the decree was an insinuation that W. F. Wilkie assigned his contract to hinder his creditors and that the decree was not sufficient, standing alone, to prove that fact. But the plaintiff was not bound to prove all of his case in one item. The evidence was proof of one link in defendant's title. No motion to strike was made because the evidence was not connected. The evidence was admissible and the objection went only to its weight.

As hereinabove set forth this action (No. 21,160, Superior Court records) was an action brought to recover damages for breach of contract because of the failure of the defendants to redeem the above–mentioned certificate of stock. In its judgment the trial court ordered N. E. Scofield to deliver the stock and awarded him judgment for the amount of the balance due on the contract. This defendant claims the action was one in specific performance and claims this plaintiff failed to show that the certificate was delivered and therefore he was not entitled to relief. We find no merit in the point. The plaintiff's action was clearly one at law to recover the amount specified in the contract. Civ.Code, sec. 3302; Dickinson v. Zubiate Mining Co., 11 Cal.App. 656, 106 P. 123. His remedy at law being complete he had no occasion to apply to a court of equity for relief under an action for specific performance. Furthermore an examination of the complaint shows it did not state facts sufficient to constitute a cause of action for specific performance because it fails to plead facts showing a mutuality of remedy. 23 Cal.Jur. 447.

When the plaintiff's motion came on for a hearing he introduced in evidence, of the records and files in action No. 21,160: (1) The complaint; (2) affidavit for attachment; (3) writ for attachment; (4) demurrer; (5) return on writ; (6) answer of defendants; (7) notice of trial; (8) findings; and (9) decree. He also introduced (1) the order to show cause why a writ of execution should not issue; and (2) the affidavit of Frank O. Hatch made in support of his motion. As each was offered no objection was made to any one of said documents. The plaintiff then rested. Thereupon the defendant objected to the granting of any relief because “each statement in the affidavit” of Frank O. Hatch was hearsay. The objection was overruled and he now assigns that ruling as error. It is a sufficient answer to state that “each statement in the affidavit” was not hearsay and that only one statement was hearsay. The objection was not based solely on that one statement, it was too broad, and the trial court did not err in overruling the objection. Furthermore the objection, if it can be called that, came too late.

The defendant also claims that the plaintiff did not prove facts sufficient. It will suffice to state that that claim is not an open question in this state. Doehla v. Phillips, 151 Cal. 488, 91 P. 330. At page 495 of 151 Cal., at page 333 of 91 P. the court said: “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 and abuse of discretion. Under such circumstances it would appear that the exercise of a sound discretion would require the enforcement of the judgment. * * * 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.” See, also, 24 Cal.Law Review 226.

The order appealed from is affirmed.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concurred.