Solomon v. Maguire

Citations

• 29 Cal. 227

Syllabus

<p>Execution on Judgment after Lapse of Five Tears.—An execution could not issue on a judgment under the two hundred and fourteenth section of the Practice Act before its repeal in 1861, after the lapse of five years from its entry, unless ordered to issue by the Court, after it had been judicially ascertained and found as a fact that the judgment, or some part thereof, remained unsatisfied and due.</p> <p>Order of Reference—What it submits to the Referee.—A reference, with directions to the referee to take proofs concerning the confession of a judgment by the defendant, and the judgment roll in the case, and whether the same was filed in the Clerk’s office, and to report the testimony, with a finding of facts and a judgment, does not submit to the referee the question as to what amount, if any, is still unpaid on the judgment.</p> <p>Finding r Necessary to support an Order for Execution to Issue.—A finding of facts by a referee that an alleged judgment more than five years old was properly entered, and is a good and valid judgment, does not support a judgment reported by him, that the plaintiffs have execution on the judgment.</p> <p>Effect of Order confirming Report of Referee.—Where a referee reported as facts the existence and validity of a judgment more than five years old, and also reported a judgment that execution issue on the same, but stated that he had not passed on the question whether the judgment had been paid by an alleged accord and satisfaction; Held, that an order of Court confirming the report of the referee does not authorize the issuance of an execution on the judgment.</p> <p>Period during which Execution is Stayed. — The period during which an execution has been stayed by an order of Court is not to be excluded from the five years, after the lapse of which an order of Court was necessary to obtain an execution.</p>