*1 A. No. 19299. In Bank. Oct. [L. 1946.] JENNIE A. LOHMAN, Appellant, v. THEODORE LOH G.
MAN, Defendant; Executrix, ZALLA LOHMAN, as Respondent. etc., *3 Sydney Wetzler and Bion Kelly, R. Piles,
Preston & H. Vogel Appellant. B.
McLaughlin McGinley D. Re- & and Howard Hanson for spondent. Theodore death of G.
EDMONDS, J.At the time of the Lohman, paid specified property he in a had not the amounts agreement provisions approved settlement whose were interlocutory in and the final court and included both second of divorce obtained Jennie A. Lohman. His decree estate, wife, Lohman, Zalla as the executrix of his success decree, fully appeal resisted motion to enforce the from the order relief. April 16, interlocutory of divorce entered The decree agreement of parties, 1929. In accordance with it $5,500 required payment and an additional immediate $10,000 $2,000 1930, $2,000 in in annual installments of in $6,000 1932. 1931, and in The court also awarded Jennie A. per According Lohman of $150 at the rate month. to. motion, in 1932 Lohman wrote support her affidavit her as follows: you writing you I can use “The reason am this to my obligation. I I the event not meet will letter do go say you very on bin considered and record and have used Note, good foreeing Judgement payment not the last present only time it result at would have ment one doing hopeing change we are we can come soone best will ore profit Employed one fair sixty-ere- at we more with a time t only twenty wages now on one half we have cut time from top to bottom keep overhead down we took 20%. a heavey lose in 1931 repeat and from all indication will 1932, you I am telling a hard storey this as luck it is simply telling you are, very facts as the I bin have weak things some I you but can I play square assure will you in a fiancely way, give you if me a chance.” “indulgence” requested which Lohman in this letter him, accorded stated, the affiant because she did not desire to her husband, harass former thereafter time requested to time she him to pay the amounts due her. response requests, to these was assured Lohman that get money” “she would asked he for further time payments. Legal to make proceedings were not com- menced because of her confidence that her former husband respect would obligation.
Lohman in 1944, died the affidavit cqntinued, without mak- ing any provision for payment of the amounts due under provisions decree, although he left a estate, sizeable including large plumbing wholesale establishment with ade- quate pay funds to his debts. He paid had not $2,000 due $6,000 in 1931 nor payable following year and since February, paid only had $125 a month on account of alimony. Concerning monthly payments, Lohman had advised her that he pay only could afford to $125 and when- ever she amount, remonstrated about the he told her that it up would be made later. Since the divorce she poor has been in *4 health and not in position any enter to into acrimonious controversy former with her husband. Ultimately, she as- sumed, her husband obligation. would meet his only
The by facts stated the executrix in an affidavit filed opposition in to the motion are that at all times since the entry interlocutory decree, the Lohman resided in city and Angeles; Jennie A. Lohman of his address Los knew during time, all of and also knew
whereabouts that he was engaged county Angeles in in the business Los and was solvent. motion, appellant
The contends that judge trial abused discretion because her course of con- sanctioned and duct was within well under circumstances asserts, approved principles. any event, she to years prior writ of execution for due within five subject judicial the date of Lohman’s death is not discretion. position The executrix is that the of Jennie A. of the affidavit diligence Lohman does show that used due to collect the amounts awarded the terms of the decree her urged ruling points support favor. Other are that 1880(3) applies section of Civil Procedure to a Code proceeding execution, appellant of an for the issuance that the precluded giving from evidence claims or demand against estate; fatally that the notice motion is defective ground upon in that it failed state motion made; court did not be and that abuse ruling adversely appellant. discretion in to the provides: Section 685 of the Code Civil Procedure judgment “In into may all cases the be enforced or carried lapse years execution after the date of its entry, court, upon motion, leave after due notice accompanied by to the debtor an affidavit or affi setting proceed davits forth the reasons for failure in com pliance provisions with the section 681 of this code. shall, failure to set forth such reasons as the discretion- of court, ground sufficient, shall be the denial ’’ may grant motion. Under this statute the court judgment by presenting a claim creditor leave to enforce his by bringing if against estate, an action thereon debtor’s rejected. Simms, 183 (Saunders claim is 806]; Katz, Cal.App.2d Bank America Club, & ; Gas Elec. v. Elks. Duck Co. 759] Pacific Cal.App.2d 1030].) such an order But applicable subject to the same to one which authorizes rules issuance of execution more than five after only if, during entered. It be made judgment, execution following creditor exercised diligence locating levying upon property owned due following the point or in information debtor, available
149
no
there was
that
would conclude
person
a reasonable
where
if
And even
subject
levy
that time.
property
within
to
this
diligence of the creditor
the court is satisfied as to
circum
debtor shows
process if the
respect,
deny
it
its
which,
upon
5-year period
occurring subsequent to
stances
conclude
discretion, it should
in the exercise of a sound
judgment.
his
collect
creditor is
now entitled to
not
205];
P.2d
Beccuti
(Butcher
21
354
Brouwer,
v.
Cal.2d
[132
207];
Hatch
Baking Co.,
v.
in Cochrane v. Cal.App.2d Superior Court, and the statement in Shields v. may to the execution issue 1045], effect that not upon accruing
as a within right matter of installments disapproved. is Although upon judgment re- issuance of execution quiring monthly payments may upon equitable denied grounds, proof that the have installments accrued within prima the right establishes a facie execution burden upon is cast the debtor to establish facts justifying (Cochrane Cochrane, an order the writ. supra.) present deny case, not the executrix did allegations of Jennie A. Lohman to the as amount indebted- ness judgment, any suggestion nor was there change of circumstances after final the date decree inequitable would make to be exacted. The opposition entire delay to the motion based in enforcing provisions judgment notwithstanding knowledge creditor’s that her former en- husband “was gaged in County Angeles business of Los and was ’’ solvent. n The affidavits, therefore, directly present do not an issue Lohman, whether at death, the time paid had all required by amounts against him. The execu- trix position does not take tlie judge might have found from nothing evidence there is unpaid. now contrary, On the she impliedly all, admits that or a sub- part, stantial amount claimed Jennie A. Lohman has the. did that the divorced wife paid. The defense is not been her; also, that awarded to diligently collect the amount act prove herself now can no other than who there is one be,” says in her the executrix amount of her claim. “It details, in all brief, appellant’s “that affidavit is correct appellant this, than and the there is no one other who knows right give on the matter point is she lost her evidence by delaying after until the decedent’s death.” letter written Lohman also effect should rights be considered connection with the provisions creditor of section 681 of the under the Code statute, effect, Civil Procedure. If it be assumed that the limitation, letter, one of in 1932, which was written estop pleading bar, sufficient to his executor from an estoppel running only operates again start the time acknowledgment of his date of the debt. Under that theory unqualified expired April, to execution 1937, and as there is no that Lohman evidence later acknowl- edged obligation, appellant may, therefore, have accruing execution for only by amounts before 1939 comply- ing requirements with the of section 685 of the Code Civil Procedure. point
As
fatally
to the
the notice
of motion is
any grounds upon
.defective
that it failed to state
which the
made,
requirement
motion was to be
statutory
.in that
*7
regard
for
opposing party.
the benefit of the
Being for his
may,
course,
benefit he
provisions. By
waive its
failing to
object
hearing
to
of the motion at the time it was noticed
heard,
to be
impliedly
the executrix
waived
defect in the
regard.
(Hecq
notice in
Conner,
v.
203
504
Cal.
[265
180]; Mallory
See,
P.
v.
129
356
P. 1123];
Cal.
Barron v.
[61
Deleval,
95;
58 Cal.
Bonfield,
v.
cerning the nature of the proffered evidence which will be hearing. The record does not appellant show that the rely upon must her own testimony prove her claim provisions of section by an waived executrix. (Deacon Bryans, v. 30]; Cal. 87 P. v. McClenahan [298 Keyes, 188 Kinley P. 454]; gent, Cal. 574 v. Lar [206 937]; Goeche, Cahill Cal.App.2d 279 905].) And motion sec by authorized tion 685 of the Code of proceeding Civil Procedure is not a meaning 1880(3) within the of section code. the same (Tolle Doak, Cal.App.2d 542].) The order is reversed with directions to the trial enter authorizing an order Jennie A. present Lohman to against claim of Theodore estate G. Lohman for all amounts provisions which accrued under the decree in Lohman v. Lohman years prior September within five 1944, and bring an action claim in the event of rejection.
Gibson, J.,C. and Traynor, J., concurred. CARTER, J.Concurring dissenting. I concur in the judgment of reversal and in portion the opinion Mr. Justice Edmonds directs of an order authorizing presentation against aof claim estate accruing deceased for the installments years prior application appellant to the en within favor, force the in her por I dissent from that opinion approve tion of which purports the order of pay appellant the trial court leave to to enforce the provided prior ments decree which accrued time. predicates portion opinion,
Mr. Justice Edmonds con- disagree, assumption which I on the that there is diligence exercised flict the evidence with reference to by and that appellant, judgment creditor, the most is, even if written Lohman said the letter can be barred the statute acknowledgment, 1932 was an was commenced. present limitation action before quoted Mr. Procedure 685 of the Code of Civil Section judg than that the requires nothing Edmonds more Justice *8 for failure “reasons” by affidavit his creditor set forth ment
153 judgment by before is barred the statute execute the showing of must make a limitation. creditor diligence endeavoring to collect within entry in for the of its order obtain leave court thereafter, writ and the determina issuance of execution largely tion issue rests in the discretion trial of that 354 Brouwer, 205]; 21 P.2d (Butcher v. Cal.2d court. [132 Calkins, 210].) 21 364 whether Hatch P.2d But v. Cal.2d [132 or circum diligence depends has been exercised always necessary stances. is not that an unsuccess show execution, judgment hy ful endeavor was collect the made to five-year period. property search and the like within for ; (See Cal.App.2d 579 Shields, v. P.2d Shields [130 982] Bell, 224]; Passow v. Corcora Cal.App.2d n ; Atkin Duffy, Atkinson v. Cal.App.2d P.2d 735] son, Cal.App.2d 824].)
In the instant case the presented by appel- circumstances lant stand uncontradicted the executrix of decedent’s es- They tate. are appellant sufficient diligent. to show that was The circumstances in the adequate instant case justifica- were tion appellant’s to attempt failure payments collect the accruing under within five they after be- due, came undisputed it is failure due her reliance the statements and conduct of decedent Hence, set forth her herein. affidavit under circum- required diligence stances she has shown the by section 685 of the Code of Civil Procedure. The facts relative the con- duct her former husband appellant which lulled into a prevented false security sense having her exe- period within cution issued years, uncon- stand tradieted. The letter written decedent 1932 contains representations that if pay decedent would unmolested appellant. appellant In her affidavit stated she accorded “in-' dulgence” constantly to decedent and was “assured” get money.” Appellant “would had “confidence” obligation that her “former respect husband” would “reposed” Duffy, supra, him. In confidence in Corcoran court, clearly affirmed the the rule present stated that in the instant case ex- conduct such as attempts judgment, cuses lack or that to collect the said, light diligence circumstance, is shown. The court ,Mr. through page 660: “It was speaking Spence, Justice paid upon judgment, nothing been conceded that had *9 154 conflicting
and affidavits while the were in part, respondent’s attempted affidavit showed that he had not to said enforce judgment by upon execution because appel- reliance repeated promises pay Appellant lant's the same. no made by prejudiced delay claim he was nor did he set inequitable showing per- that it would be forth facts judgment.” [Emphasis mit 'the enforcement added.] showing of prejudice Likewise in the instant case have no we delay promises by repeated pay. caused and have the limitation, gen statute of estoppel plead In cases agreement not erally, it that a mere to enforce has been held de obligation estop reliance on the statute where the will an of the forbearance. In Phil accepted the fruits fendant has 530, 346], 535 P. the court said: lips Phillips, v. [127 regarding for questions the consideration from all “Aside execution, sufficiency and the contract of forbearance statute setting up the bar of the prevented defendant accepted She principles estoppel. upon clear of limitations of her hus those Her actions and of the contract. the benefits security plaintiff into assumed agent, band, as her lulled expiration until foreclosure postpone him to and caused consequently she agreement; in the mentioned period ordinarily to a advantage available pursue the cannot now (See, to same limitations.” litigant under the statute Cal.App. Co., 17 Wine effect, Quanchi Ben Lomond pay promise to 31.) that a 8, And 427]; 130 A.L.R. P. (Rapp Rapp, estoppel. an inducing establishes forbearance etc. America Bank ; Miles v. 218 Cal. 161] Smith, ; Roper v. Assn., Cal.App.2d 177] 34.) 130 A.L.R. ; 302 [187 454] is uncontra- appellant’s affidavit case the In the instant alone letter from de- placed is not Reliance dicted. in her affi- . reference is made appellant, which cedent of Mr. opinion in the Jus- davit, theory, as intimated acknowledgment tolling time is an Edmonds, that it tice It is enforced. uncontra- within repeated promises to make made that decedent dicted appel- assured in the and provided payments state- nothing worry about. Some of those she had lant in the contained orally others were and made were ments estoppel was upon them relied Appellant letter. asserted the executrix fact mere established. of de- knew the whereabouts appellant affidavit her not, expressed by cedent and that he solvent does Mr. Edmonds, upon practically every doubt mate- Justice “cast appellant, regard rial her fact asserted claims directly to the installment due 1932 are at variance with letter written Mr. Lohman which she relies.” knowledge solvency Her of decedent’s address and his wholly harmony he mis- with her affidavit that undenied judgment. led believing pay Natu- into that he would rally they in fre- he inasmuch as were knew where affidavit, quent casting contact. Eather than doubt on her completes picture. merely executrix’ statement promises given view of decedent assurances to appellant, considerate treatment and the forbearance and *10 deny thereof, which to now she accorded him the result as against estate right present decedent’s the her claim judgment, payments for the under the which accrued rejected litigate if paid, which were not such claim and to jus- simple executrix, is, my mind, the a denial of all suffer—the hope tice which of who is said to be “the wrong.” dread all who
Shenk, J., concurred. SPENCE, J.I appeal presents dissent.This question the the propriety trial court’s order plaintiff claimed to enforce a divorce against decree estate her divorced following husband the death of the latter. The opinions of Mr. Justice Edmonds and Mr. ex Justice Carter press the view that the order of denial should be reversed but opinions authors are not in accord as to the direc tions should accompany which such reversal. In my opinion, the order should be affirmed for the reasons hereinafter stated.
The divorce decree was entered in 1929 and enforcement sought was not September, 1944, until being more than 15 after the of the decree being just at a time prior expiration to the period allowed filing for the against of claims the estate. Plaintiff’s motion accompa- was only by nied affidavit, her own which affidavit failed to show any diligence in attempting whatever to enforce the decree despite plaintiff the fact deliquencies claimed on the property dating settlement installments back far as as and on the installments back as 1935, being far as delinquencies claimed of 13 respectively. In her affidavit, plaintiff forth copy set alleged letter which she in 1932, deceased had written which letter tended to cast portion plaintiff’s doubt on at least a concerning claims alleged delinquencies. Furthermore, to adopt the words of Mr. Justice Edmonds, counter-showing “the execu- trix cast practically every doubt material fact asserted appellant.” Nevertheless, opinion both the of Mr. Justice opinion Edmonds and the of Mr. Justice Carter are necessarily predicated upon assumption the trial compelled accept unsatisfactory showing plaintiff delinquencies and to determine that the claimed assumption I believe wholly existed. that such is erroneous opinions assumption and that based have fact-finding usurping effect of function of court. provides The Code Civil Procedure “That evidence weight, only by own intrinsic but also to be estimated not its according in the power to the evidence one which produce (Code side to and of other to contradict ...” 6.) “a Proc., has been said this is subd. Civ. § (10 Jur., 359, p. 1140.) In rule.” commonplace mere § justified in entirely light rule, trial court was of this weight allegations plaintiff’s little, any, if to the giving itself the seeds of That affidavit bore within affidavit. destruction, destruction, partial and it or at least own strong probably contained by an affidavit countered following the by respondent made showing as could be direct that there was no con- It is true deceased. death de- existence of the claimed respondent of the tradiction *11 that credulity believe one’s it stretches linquencies, but long duration have been would delinquencies of such claimed debtor, plain- known against exist solvent permitted to plumbing busi- an established conducting have been tiff to residence, parties’ city throughout ness enforce having made to been attempt any whatever without direct con- there was no that The fact delinquencies. such that trial well settled immaterial, for it is is tradiction of testimony sworn accept always bound to is not directly con- may be no evidence though there even a witness 1143); 362, p. Cal.Jur., (10 testimony tradicting § such testimony presented when the sworn true same is Union, Journeymen etc. Plumbers (Berg affidavit. that follows therefore 1091].) It App.2d compelled allegations accept as true the court was affidavit, the order of denial plaintiff’s contained that ground. justified upon was ground, however, There is a second which I re- believe
quires an affirmance of the order trial court denying 15-year-old enforcement divorce decree. We are not dealing attempted here with the enforcement of ordinary an money dealing but are with attempted enforce- type ment the anomalous decree entered a court of equity action, in a divorce in the nature a continuing ali- mony subject decree. The direct of attack appeal this an order of the equity same court of which entered the divorce decree, denying the enforcement of such decree. I am of the opinion that the trial court was at all times invested with determining discretion in any whether claimed delinquent installments accruing under such decree should be enforced in the divorce execution, action and that since the death of the deceased husband the trial court was invested with dis- granted cretion to determine whether leave should be en- force the same by against action any event, estate. seems clear that the trial court invested with discretion where, here, sought enforcement was not until more than judgment. after the true, If this be then in any diligence the absence of showing part on the plaintiff or, the reasoning follow Mr. Justice Ed- monds, in showing satisfactory diligence absence as the requires, such law I believe that the trial court’s order as to all delinquencies enforcement claimed should affirmed, be as it cannot be said that trial court abused making its discretion in its order of denial.
Mr. together Justice Edmonds and Justice Carter, Mr. my joined opinions, those of associates who have their plaintiff reach the conclusion that “a was entitled as matter right” to delinquencies enforcement of claimed on in of alimony years prior stallments accrued within sought. Assuming to the time that for the enforcement was purpose point only, discussion of the trial compelled delinquencies court was to find that claimed existed, agree to the en plaintiff I cannot entitled delinquencies right” or forcement of such as ‘‘a matter of Superior Court, the case of Shields disapproved. 1045], be to me should seems hold, opinion of Mr. wholly inconsistent as does *12 158 Edmonds, that “a
Justice such enforcement was matter of right” “upon but such enforcement could denied equitable grounds.” right Enforcement either a matter is of discretion, of it cannot be both. or matter right plaintiff a matter view that was entitled as The delinquencies on installments to enforcement of claimed alimony prior five to the time which accrued within necessarily upon the sought is based that enforcement was (1) 681 following propositions: provisions That the of section govern manner of en- Procedure Code of Civil decrees, (2) continuing said alimony forcement continuing apply 681 installments section provisions of years after than five more decrees which accrue time years prior to the entry of the decree but within con- exist sought. doubt Whatever that enforcement concern- be no doubt there can cerning proposition, the first sec- applicability The untenability second. ing the en- the section to express terms limited tion entry” years after “at time forcement within cannot be of that section judgment, provisions Of enforcement claim here relied to establish entry. after such than a matter more 352, DeUprey DeUprey, 23 and Gaston Cal. The cases Gaston, [46, Am.St.Rep. 786], are support conclusion by Mr. Justice Edmonds cited right. cited is a matter of The cases enforcement bearing DeUprey The problem on the before us. have no direct limita- merely application the statute of dealt case brought upon an independent in an action installment tions did judgment, that the of limitations and was held statute installment until such installment start to run on each by execution became It did not deal with enforcement or due. equity with a motion made for leave enforce the action original'judgment was entered. The Gaston case which the merely expressly imposed dealt with the duration of a lien judgment. The the installment install- court secure regularly years and, paid ments on the were upon default, had the court in which been property entered ordered the sale of the lien imposed. had held that the lien had not expired been years after the under the then two Procedure, section 671 provisions of the Code of Civil as the lien did from that not “derive its force section.” *13 years more than five repudiated the claim because further judgment entry judgment “the elapsed the of had after the binding force, process could not and issue to be of ceased added.) (Emphasis It therefore under it.” is obvious discussing question power of there of the court was trial court to enforce the installment after such question lapse time, discussing not was of whether right the matter of enforcement one or of discretion. was DeUprey The reached conclusions cases are Gaston clearly they support correct, by but do not the statement Mr. entitled, Justice Edmonds that “the creditor is as a matter right, execution to such a for all amounts years which accrued within have date application therefor.” whether is doubtful section 681 of the Code of Civil
Procedure, which deals judgment by with the enforcement aof execution and is claimed make such enforcement a matter right here, govern ever was intended to the enforcement of continuing alimony decrees. It would seem logical more conclude, despite assumption of the applicability of sec tion 681 in many found of the dealing continuing cases with alimony decrees, that section 140 of Code, the Civil provides that “may the trial court continuing enforce” its by any “remedy decrees applicable,” was intended governing be question section. This discussed Superior Shields v. Court, 138 Cal.App. 1045], but not neeesary question it was to decide the there, and necessary not here, decide it for the reason each case years more than five elapsed had entry after the decree before motion for enforcement was made. It was there said on pages 153 and 154: “As we view the situation present case, it is unnecessary conflicting to discuss these con position tentions. If the taken respondents correct, then the issuance of execution was at all times a matter within the discretion of the If, trial court. on the hand, other position by petitioner taken question is correct, the of whether was entitled the issuance of a writ execution towas be determined the provisions of sections 681 and 685 of the Code of Civil Procedure. provisions of said section relating judgments generally, entitled the creditor to a writ of execution a right as matter of ‘at time within years entry’ judgment. of the Under said section after 685, writ of execution may had judgment only ‘by the date lapse of court’ after the of five leave ‘from entry.’ in 1924 and the The decree here was entered 1934, ap
motion made in issuance execution was after of the proximately ten decree. Under view, petitioner not to a writ of either entitled execution only made, as a matter of at the time the motion was trial court. the discretion While it is true monthly payable installment had accrued become each five-year period during immediately preceding the month making motion for and while the issuance execution true, appellant, pointed it is out that the decree further already (Cummings accrued could be modified as sums Tearle, Cummings, Cal.App. 245]; Bruton dealing 623], solely are here we question provisions of the manner enforcement Assuming of the decree. that sections 681 and 685 of the Code *14 providing of sections manner Civil Procedure are the the by petitioner, of enforcement as contended was not entitled right thereunder to of the issuance of execution as a matter lapse years entry after the the of five the date of the of support Parker, decree. This in Parker v. 203 view finds 283], 787 and Radonich Radonich, v. [266 51]).” P.2d here immaterial whether section appears therefore governing or deemed to be the section of Code is the Civil of 681 and 685 of the Code Civil Procedure whether sections covering manner governing the are sections deemed be the continuing alimony conclu- of decrees. The of enforcement inescapable view that none of cited sion under either seems continuing alimony judgment of a sections makes enforcement date lapse of five from the a matter of after my opinion, decree. In at least after entry of such matter of enforcement five-year period, the lapse of-such is continuing decree is a matter which committed court, trial and an order discretion to the sound unless trial enforcement should not reversed court an dis- clearly there has been abuse appears that it when such enforce- opinion I cretion. am further 5-year it sought lapse period, and after the of such ment long period existed delinqencies have over is claimed judg- placed squarely upon years, should be the burden convincing showing and con- a clear ment creditor to make delinquencies cerning of other facts the existence and exercising dis- equity in its appeal would court of respect to enforcement. cretion with Cal.App.2d 937 Cochrane, case of The Cochrane support Mr. in 714], by cited Justice Edmonds conclusions, any, support if thereto. The division little, lends clearly ques in in the court that case was not drawn matter of enforcement a matter tion of whether court, right or a matter within discretion of the question rather where show the burden rested to facts which should be the trial considered Furthermore, appears exercise of discretion. it its judgment debtor, living, case who still “made counter-showing.” no Duffy, Cal.App.2d
The case of Corcoran 735], Carter, clearly distinguishable cited Mr. Justice support and lends no his conclusions the instant case. There trial court had ordering exercised discretion issue, execution to and question the sole discussed was that diligence. judgment debtor there living was still he and nothing had paid judgment conceded been at Moreover, time. was shown by the creditor’s only affidavit not that execution had been returned unsatisfied within five after judgment, but also that the judgment creditor had thereafter executed at various times three formal “Acknowledgment instruments entitled Pay.” Promise these, each debtor acknowledged that he owed the amount of the interest and that he had paid nothing thereon; he each, promised pay fixing same without any date for such payment; each, it was recited that undersigned “the gives acknowledgment promise in order that said ’’ *15 indebtedness shall not be by any barred statute of limitations. The court there affirmed the order granting the motion and it page stated at 660: “The ruling trial court’s the motion should not be disturbed in the showing absence of a of a clear abuse of discretion and find showing we no such in the ’’ present case. I Likewise here find showing no of an abuse of in discretion and the absence showing, of such the action of the trial court should be sustained. I
In am of the summary, view that the order of the trial denying court enforcement properly cannot be reversed: reversal, First, any because order of with or without direc- tions, necessarily usurp fact-finding the must function of the de- of claimed the to the existence respect with trial court reversal, order of with any second, because
linquencies ; and the necessarily only usurp directions, must or without the respect to court of the trial fact-finding function the diligence but must also substitute relating allegations to in court the trial for discretion of of discretion part on of the trial of discretion- no abuse case where court has been shown. it diligence, must be recalled respect question With to the made exercise the claimed attempt
that no
was
entry,
than
after
more
enforcement until
lips
debtor were
at
time
decree and
when
allegations,
According
plaintiff’s
delin
in death.
sealed
entry of the
years after the
quencies
within two
occurred
attempt
made
enforcement before
decree but no
was
to obtain
5-year
only
purporting
lapse
period.
evidence
any
plaintiff
manner the claims of
to corroborate
debtor
which related
letter written
only
writing,
at the
which
the situation
time
sought.
strongly relies
before enforcement was
Plaintiff
doubt
on that letter but that bit of evidence tends
cast
remaining allegation
plaintiff’s claims.
part of
Plaintiff’s
diligence
alleged
issue of
consisted
conversations with
deceased,
agree
I
with Mr. Justice Edmonds that such
unsatisfactory,
constitutes “the weakest and
evidence
most
all
The trial
compelled
kinds
evidence.”
court was not
allegations,
particularly
light
the latter
more
believe
counter-showing
respondent,
assuming
but even
agree
I
thereof,
truth
further
with Mr. Justice Edmonds
says:
chose,
where he
“But if
than
years,
more
-
rely upon
good intentions,
expressed
her,
as he
them to
say
she cannot
diligence
now
that she used the
law
requires
protection
legal rights.”
of her
evidence,
appears
therefore
that under
view
be said here that
cannot
court abused
discretion
I
enforcement,
do
not believe
Mr.
Justice
Garter’s conclusions can
reconciled
with the recent deci
Brouwer,
of this
sions
court in Butcher
tunate *16 regardless sion that continuing time when a may decree entered, regardless have been and of whether the judgment creditor may any diligence have exercised in at- tempted enforcement, such creditor is entitled right matter of enforcement at time of those install- ments have accrued within the time when sought. enforcement is It is matter common knowl- edge continuing there are countless thousands old alimony decrees, many during of which were entered boom era of the and many 1920’s which have never been knowledge modified. is also a matter of common that we through long period have been depression followed war, several of disturbed conditions attributable to the and many including that there are debtors, those who have forces, in the armed during served who have been unable these specified disturbed times to under payments make the full decrees, such old or modifica- pay even to counsel to obtain cases, practical In tion. some have in effect modi- parties express implied, fied understandings, such decrees oral or pay accept amounts smaller than specified those in during years. decrees entered earlier Actual modifications decrees, order these old possible, if now could installments, affect accrued question arises: be “Should the creditor held to be entitled to as a alleged delinquencies execution matter on accru- ing during years immediately preceding the five appli- cation for execution to issue?” To this question answer in affirmative, opinions as do the of Mr. Justice Edmonds Carter, grave injustice undoubtedly Mr. Justice will do may spell many numerous cases and financial ruin for who struggling are now for economic rehabilitation. On the other hand, Court, Superior supra, the rule enunciated Shields v. recognized many eases, would continuing alimony leave the matter of enforcement de- crees within the sound discretion of the trial court at all place times and would no burden undue judg- In appears creditor. those that the cases which died, ment I debtor has believe that the widest latitude should discretion, be to the trial court the exercise allowed ordinarily rep- impossible for it is obvious that it is for counter-showing make a full resentative the deceased to respect reasons respect payments with or made on, nonpayment of, understandings partial payment or or cases, preju- probable accrued installments. enforcement, apparent. resulting delay in dice, join in conclusion stated, I cannot For the reasons but, reversed should the order of the trial court *17 should denying enforcement I order contrary, believe that the be affirmed. J.,
Schauer, concurred. A. No. 19533. Bank. Oct. [L. 1946.] Minor, PEOPLE, Respondent, OYAMA, THE v. FRED Y. al., etc., et Appellants.