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

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.…

It will be proper to say, in denying the petition for rehearing in this case, that our attention is called by the petition to the decision in Harrier v. Bassford, *Page 663 145 Cal. 529 , [ 78 P. 1038 ], which it is assumed had escaped our attention. In that case, the judgment on which execution had been issued was not barred by the statute, and this fact was decisive of the case. But the court also considered the question whether — assuming that after five years from the date of the judgment's becoming final, an order could be made, without notice — the act would be unconstitutional; and it was held that it would not be; and in deference to this expression of the court (which was not present to my mind when I was writing the opinion in this case), it will be proper to modify the opinion by striking therefrom what is said as to what would be the constitutionality of the act upon the construction contended for. The question whether the act was to be construed as authorizing such an order, without notice to the defendant, was not discussed or, apparently, considered in that case; and what is said upon the subject should, I think, be construed as referring to the question…