14 Cal. App. 2d 416 | Cal. Ct. App. | 1936
Appeal from an order for the enforcement of a deficiency judgment and for issuance of execution under the provisions of section 685 of the Code of Civil Procedure.
The facts show that on January 6, 1923, the Superior Court of the City and County of San Francisco made a decree of foreclosure and an order of sale in an action where the appellant herein was a defendant; that thereafter certain pledged property was sold by a commissioner and return made by him showing a payment on account of the judgment in the amount of $2,487.25 arising out of the sale of the pledged property; that on July 25, 1923, a deficiency judgment was entered against the appellant George L. Riccomi and Fred J. Riccomi, his brother, for the amount of the deficiency
Appellant has favored us with a history of section 685 of the Code of Civil Procedure and he contends that under the amendment thereto in 1933, requiring notice to be given to the judgment debtor and providing further that the motion must be accompanied by an affidavit setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of the same code, the court can no longer accept any reason in its mere discretion as being sufficient to excuse the failure to proceed in compliance with section 681 of the Code of Civil Procedure. We see nothing in the amendment that in any manner changes the character of discretion to be exercised in passing upon such motions after the matter has been properly presented. Failure to give reasons for delay justifies the court in denying the motion, but where, as here, reasons are given for failure to have execution issued, which reasons are satisfactory to the court, the power of the exercise of discretion still exists as it did prior to the. amendment, a more formal presentation of the motion only being required.
From the showing made the court had a right to conclude that the issuance of an execution would have been futile if regularly issued. In our opinion the court exercised a sound discretion in ordering execution. This being so, the order is affirmed.
Knight, J., and Cashin, J., concurred.