Wheeler

In this action a judgment of foreclosure, directing the sale of certain mortgaged lands, was entered in favor •f the plaintiff on April 23, 1890. The period of five years allowed by statute for issuing process as of course on the judgment having expired, and no sale having been made, the plaintiff noticed a motion in January, 1896, for leave to carry the judgment into execution pursuant to section 685 of the Code of Civil Procedure. It is provided in said section, as amended in the year 1895, that: “In all eases 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 supplemental pleadings,” etc. The court denied the motion.

Several interesting questions are raised in argument touching the effect, and even the validity, of said amended section of the code; only one of them need be now examined. Plaintiff does not contend that the denial of his motion was, in view of the evidence before the court at the hearing, an abuse of power, if the court can exercise discretion in such cases; but he claims that under the statute the court had no discretion…