National Bank of California v. Los Angeles Iron & Steel Co.

84 P. 466, 84 P. 468, 2 Cal. App. 659, 1906 Cal. App. LEXIS 249

• Court: California Court of Appeal
• Decided: January 8, 1906
• Docket: Civ. Nos. 103, 104.
• Status: Published

Opinions

Appeals from an order for the enforcement of a judgment over five years old, and from an order refusing to set aside the former order and to recall the execution thereon issued.

The latter order was issued on affidavits, and, among others, on that of R. H. Herron, a defendant in the suit, from which it appears that at some date unspecified, but before the original order "he paid the full amount of the judgment to [the plaintiff] with interest." And as it does not appear that any of the proceedings specified in section 709 of the Code of Civil Procedure were taken by him, it is clear that the judgment was extinguished. (Civ. Code, sec. 1474;Reynolds v. Lincoln, 71 Cal. 184, [9 P. 176, 12 P. 449];Estate of Baby, 87 Cal. 202, [22 Am. St. Rep. 239, 25 P. 405].) It appears, indeed, from the affidavit of Herron that the judgment was, at his instance, assigned to one Hays in trust for himself and his attorney, but the date of the assignment is not given, and from aught that appears to the contrary, years may have elapsed between the payment and the assignment; and, indeed, from the careful omission of dates in the affidavit it may, perhaps, be inferred that such was the case. But at all events, it clearly appears that the assignment was subsequent to the payment; or, at least, the contrary does not appear. Indeed, giving to the term "payment" its strict and proper construction, it may be inferred from the payment itself that there was no assignment; for if there had been, there would have been no payment of the judgment, but a purchase of it only; a payment and an assignment being essentially different transactions.

In this connection, it should be observed that, assuming the validity of an assignment of a judgment to one of the defendants (Williams v. Riehl, 127 Cal. 365, [78 Am. St. Rep. 60, 59 P. 762]; Freeman on Judgments, sec. 472), yet the right of the assignee to the judgment in such case is rather an equitable than a legal right, and extends no further than to the use of the judgment as a security for the payment of the amounts properly due from other parties. It, therefore, would seem to be a right that can be exercised only after an affirmative showing to the court and a determination of the indebtedness of the other defendants; by which we mean, not that a new suit is required, but that, at least, application should in all cases be made to the court. As to the original order, it appears that this was made without notice to the defendant, and without any showing to the court other than such as was furnished by the record itself. On the latter account, the order was clearly erroneous; for it has been held that the order is to be granted only "in the exercise of a sound discretion by the court" (Wheeler v. Eldred, 121 Cal. 28, [66 Am. St. Rep. 20, 53 P. 431], 137 Cal. 38, [69 P. 619]); which implies that it is not to be issued as of course, but that a showing must be made to overcome the presumption arising from the bar of the statute.

For the same and other reasons it was also error to entertain the motion without notice; and, indeed, we are of the opinion that notice was essential to give jurisdiction to the court, for several reasons: (1) By the terms of the act, the order can be made only "upon motion or by judgment for that purpose founded upon supplemental pleadings." In the latter case, repeated notice would be given, as in other proceedings in court, and the coupling of the two clauses together would seem to imply that where the proceeding is by motion, it should substantially conform to the regular proceeding in the matter of notice and other matters. The case, therefore, presents an obvious occasion for the application of the maxim,"Noscitur a sociis." (2) The conclusion thus reached from the language of the act is confirmed by a regard to its intention; for it is impossible to conceive of any reason for a distinction in the matter of notice between the two modes of procedure; and (though the assumption may be sometimes a violent one) we must assume that the legislature did not act without reason. (3) This conclusion is also confirmed by the consideration that the proceedings under this section are a substitute for the writ ofscire facias, where notice was always required. (Bouvier's Dictionary, "Scire Facias"; McDonald v. Dickson, 85 N.C. 250.) (4) Finally, after the expiration of five years, the action is barred (Code Civ. Proc., sec. 336), and hence, there no longer exists any cause of action upon the judgment. A new life may, indeed, be given to the judgment in the manner prescribed in section 685 of the Code of Civil Procedure; but in the absence of such action the defendant stands free of any liability on account of the judgment, or otherwise, and it seems clear that to revive or create a liability against him without giving him an opportunity to be heard would be in contravention of the constitutional provision that forbids any man to be deprived of his property without due process of law.

It may be proper here to note that in Bryan v. Stidger,17 Cal. 270, involving section 214 of the Practice Act as it originally stood (Hittell's Gen. Laws, art. 5153, note "d";Mann v. McAtee, 37 Cal. 11), it was held that the order for issue of execution might be made ex parte; but the provisions of the original section are essentially different from those of the section of the code now under consideration; and, indeed, the decision of the court in that case is apparently disapproved in the subsequent case of Mason v. Cronise, 20 Cal. 214, where it is said that the decision in Bryan v. Stidger probably led to the repeal of the act.

For these reasons, the orders appealed from must be reversed, and it is so ordered.

Gray, P. J., and Allen, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeals on February 7, 1906, and the following opinion was rendered thereon: