Opinion
Rehearing Granted Jan. 14, 1942.
Appeal from Superior Court, Los Angeles County; Benjamin J. Scheinman, Judge.
Suit by R. L. Butcher against John C. Brouwer, wherein a money judgment was entered in favor of plaintiff. The plaintiff thereafter assigned the money judgment to Sally Williams. From an order for issuance of an execution more than five years after entry of the judgment, which order was granted upon motion of assignee of the money judgment, the defendant appeals.
Reversed.
COUNSEL
George Acret, of Los Angeles, for appellant.
Emmett A. Tompkins, of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
From an order directing that an execution issue pursuant to section 685 of the Code of Civil Procedure, more than five years after the entry of judgment, defendant John C. Brouwer appeals. The order was granted upon the motion of Sally Williams, the assignee of a money judgment in favor of plaintiff.
So far as material here these are the essential facts:
January 10, 1929, the appealing defendant was adjudicated a bankrupt. June 27, 1929, plaintiff obtained a default judgment against him in the sum of $2,083.22, together with costs amounting to the sum of $22. Thereafter partial payments in the sum of $485.21 and $165.18 were made upon the judgment. December 16, 1932, the judgment was assigned to Sally Williams. On the same day a writ of execution was issued and caused to be levied upon the property of John C. Brouwer, the appealing defendant. Thereafter Mr. Brouwer applied to this court for a writ of mandate requiring the superior court to quash the writ of execution which had been issued. This court issued such an order and also ordered the superior court "to desist from all attempt to enforce" the judgment "against petitioner John C. Brouwer until he is finally either granted or denied a discharge as a bankrupt in the bankruptcy proceeding now pending, and until the proper presentation of proof of such final grant or denial to respondent court." (Brouwer v. Superior Court, 130 Cal.App. 163, 168, 19 P.2d 834, 836. (Italics added).
February 6, 1933, a special master heard the application of the appealing defendant for his discharge in bankruptcy, and made and filed a report recommending that such application be denied. This report was confirmed on February 27, 1933, by the United States District Court. May 19, 1933, plaintiff’s assignee filed in the Superior Court of Los Angeles County a copy of the minute order of the United States District Court denying the appealing defendant a discharge in bankruptcy which order was dated February 27, 1933. September 30, 1940, plaintiff’s assignee instituted the present proceeding, which resulted in the trial court’s making an order on March 5, 1941, directing the issuance of a writ of execution against the property of the appealing defendant.
This is the sole question necessary for us to determine:
Was there proof presented to the superior court that defendant John C. Brouwer’s application for a discharge in bankruptcy had been finally denied?
This question must be answered in the negative. The law is established in California that a judgment is not final (other than for the purposes of appeal therefrom) so long as the action in which it is made is pending; and an action is deemed pending until it is finally determined on appeal or until the time for making a motion for new trial or taking an appeal therefrom has elapsed. (Pacific Gas & Elec. Co. v. Nakano, 12 Cal.2d 711, 714, 87 P.2d 700, 121 A.L.R. 417; Gillmore v. American Cent. Ins. Co., 65 Cal. 63, 66, 2 P. 882.) In the instant case the appealing defendant had ninety days within which to appeal from the district court’s order denying his application for a discharge in bankruptcy (U.S.C.A. Title 28, secs. 225(c) and 230.) The district court’s order was entered February 27, 1933, and a copy thereof was filed in the superior court May 19, 1933. Eighty-one days only, therefore, had elapsed from the date of the making of the order until a copy of it was filed in the superior court. It is clear that the time for appeal from such order had not elapsed, and under the law above stated such order had not become final.
Since the order issued by this court in Brouwer v. Superior Court, supra, prohibited the trial court from attempting to enforce the judgment in the instant case until proof that the order granting or denying the appealing defendant’s application for a discharge in bankruptcy had become final (and such proof, according to the record, has not been submitted to the trial court) one of the essential prerequisites for the order which the trial judge made in the instant case was lacking, and therefore the order was erroneous.
In view of the conclusions we have reached, it is unnecessary for us to discuss the other arguments urged upon this appeal.
For the foregoing reasons the order is reversed.
MOORE P. J., and W. J. WOOD, J., concurred.