Lingsweiler v. Lingsweiler

The judgment creditor obtained an order, under section 2441, Code Civil Procedure, for the examination of a' person averred to have in her possession property belonging to the execution debtor. The affidavits showed what *397at the time was the fact, that the execution had not been returned. Before the return-day of the order, the execution debtor, not the third person, moved that the order be vacated. The motion was granted. The ground of this disposition only appears in the recital of the order then made, as follows : “ and it now appearing that at the time of the service of copies of said affidavit and order, said execution had been returned, etc.”

In my opinion, to justify superseding the original order, it was necessary to prove that after it was allowed, something had occurred which changed the rights of the parties in requiring an order different, from that allowed, or which would have called for another kind of disposition of the matter finally. The mere fact of the return of the execution would not have called for another kind of order or for another kind of exercise of the power of the court. Code Civil Procedure, §§ 2447, 8, 9. If the execution had been returned satisfied, then the court would have been without power to direct the person examined to pay or to deliver. The respondent was bound to show this. There was no presumption of satisfaction. It was consistent with the recital that the execution had been returned partly unsatisfied.

As it does not appear by the record that the judgment debtor had been called into the proceeding by a notice required by the court, Code Civil Procedure, §§ 2441-2447, and was a party to it, there may be a doubt whether he had a right to make the motion below. This was not considered by the argument of the appeal, and is not passed upon.

The order should be reversed, and the motion denied, with $10 costs.

Ingkaham, J., concurred.