Dorland v. Hanson, No. 12699

No. 12699 | Cal. | Nov 16, 1889

Works, J.

The only question in this case is, whether or not an execution or order of sale can issue upon a decree foreclosing a street assessment after five years. The court below held it could not, and set aside and vacated a former order authorizing such writ to issue, and vacating a sale made thereunder. From this order the appellant prosecutes this appeal.

Section 681 of the Code of Civil Procedure provides: “The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement.” And section 685 provides: “In all cases other than for the recovery of money 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, or by judgment for that purpose, founded upon sufficient pleadings.”

The contention of the appellant is, that the first of these sections applies solely to personal judgments for the recovery of money, and that a judgment for the foreclosure of a street assessment lien, where there can be no personal judgment, is not within that section, but is covered by section 685, and that therefore her execution or order of sale was properly issued by leave of court after five years.

We do not so construe these sections. Section 681 must be held to apply to a judgment, the object, purpose, and effect of which is to enforce the payment of money, whether the same be a personal judgment against the party indebted, or a decree foreclosing a lien for an amount due. Section 685 was evidently intended to and does apply to judgments requiring the party against whom it is rendered to do some specific act, as, for example, to deliver specific real or personal property. Taking this view of the two sections, we must hold that the order of the court below vacating the order authorizing the issuance of the writ after five years, and vacating the sale made under such writ, was right.

It was claimed in the opening brief of the appellant that the full five years had not run, because, during a part of the time, the powers of the administrator, whose power and duty it was to cause the writ to be issued, were suspended; but this contention is expressly abandoned in the closing brief, and it is admitted that the suspension of the powers of the administrator could not have the effect of suspending the running of the statute.

The order authorizing the issuance of the execution was made by one department of the court below, and the order vacating the samé by another department of the same court; and it is contended that this was erroneous. We see no force in this position. It was the same court acting in each instance, and the fact that the orders were made in different departments is immaterial.

Again, it is said that the order authorizing the issuance of the writ was an appealable order, and could not be attacked in this way. Conceding the order to have "been appealable, the execution issued was void, if the court had no authority to order its issuance, and might be attacked by a motion to vacate and set it aside, and the same may be said of the sale made under it. Therefore, the only material question was, whether the execution and sale should be set aside; and as to the power of the court below to set them aside, conceding the order authorizing the writ to issue to "have been an appealable order, we have no doubt.

Counsel attempt to distinguish between an execution and an order of sale, and contend that section 681 is confined in terms to the former, and does not limit the time in which the latter may issue. "We think, however, that the difference between the two writs is more in the name than anything else, so far as it affects the question before us, and that section 681 must be held to apply to both.

The order appealed from is affirmed.

Fox, J., and Paterson, J., concurred.

Hearing in Bank denied.