Miller v. United States

This is an appeal from a judgment on the pleadings in a cause of action based upon -a prior judgment entered in 1933, for the amount of a fine, a part of a criminal sentence on conviction of a federal offense in the United States District Court for the Southern District of California.

Appellant does not question that such judgment for a fine is a cause of action for the recovery of a second judgment. Smith v. United States, 9 Cir., 143 F.2d 228 , cer-tiorari denied 323 U.S. 729 , 65 S.Ct. 65 , 89 L.Ed. 585 . His sole contention is that the denial of a prior petition in 1945 in the criminal case for execution upon the sentence of 1933 is res judicata that the sentence is not even a dormant judgment and, in effect that the amount of the fine is no longer due and owing the government.

This petition for the writ of execution on the fine was brought under the California law pursuant to Rule 69 of the Federal *609 Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides

Under the California Code of Civil Procedure, Section 681, execution on such a judgment cannot issue after five years from its entry, plus the time during which the execution is stayed, except by a…