JENNIE A. LOHMAN, Appellant, v. THEODORE G. LOHMAN, Defendant; ZALLA LOHMAN, as Executrix, etc., Respondent, 29 Cal. 2d 144

EDMONDS, J. At the time of the death of Theodore G. Lohman, he had not paid the amounts specified in a property settlement agreement whose provisions were approved by the court and included in both the interlocutory and the final decree of divorce obtained by Jennie A. Lohman. His second wife, Zalla Lohman, as the executrix of his estate, successfully resisted a motion to enforce the decree, and the appeal is from the order denying relief. The interlocutory decree of divorce was entered April 16, 1929.

In accordance with the agreement of the parties, it required the immediate payment of $5,500 and an additional $10,000 in annual installments of $2,000 in 1930, $2,000 in 1931, and $6,000 in 1932. The court also awarded Jennie A. Lohman alimony at the rate of $150 per month. According to. her affidavit in support of the motion, in 1932 Lohman wrote to her as follows: “The reason I am writing this to you is that you can use this letter in the event I do not meet my obligation.

I will go on record and say you have bin very considered and used good Judgement in not foreeing payment on the last Note, it would only have ment one result at the present time we are doing the best we can hopeing a change will come soone ore at one time we Employed sixty-ere- more with a fair t profit and now only twenty on one half time we have cut wages from top to bottom 20%. to keep the overhead down we took a heavey lose in 1931 and from all indication it will repeat in 1932, I am not telling you this as a hard luck storey it is simply telling you facts as the are, I have bin very weak in some things but I can assure you I will play square with you in a fiancely way, if you give me a chance.” The “indulgence” which Lohman requested in this letter was accorded to him, the affiant stated, because she did not desire to harass her former husband, but thereafter from time to time she requested him to pay the amounts due to her.

In response to these requests, she was assured by Lohman that “she would get her money” and he asked for further time to make the payments. Legal proceedings were not commenced because of her confidence that her former husband would respect his obligation. Lohman died in 1944, the affidavit cqntinued, without making any provision for the payment of the amounts due under the provisions of the decree, although he left a sizeable estate, including a large wholesale plumbing establishment with adequate funds to pay his debts.

He had not paid the $2,000 due in 1931 nor the $6,000 payable the following year and since February, 1935, had paid only $125 a month on account of alimony. Concerning the monthly payments, Lohman had advised her that he could afford to pay only $125 and whenever she remonstrated about the amount, he told her that it would be made up later. Since the divorce she has been in poor health and not in a position to enter into any acrimonious controversy with her former husband. Ultimately, she assumed, her husband would meet his obligation.

The only facts stated by the executrix in an affidavit filed in opposition to the motion are that at all times since the entry of the interlocutory decree, Lohman resided in the city of Los Angeles; Jennie A. Lohman knew of his address and whereabouts during all of that time, and also knew that he was engaged in business in the county of Los Angeles and was solvent. The appellant contends that in denying the motion, the trial judge abused his discretion because her course of conduct under the circumstances was within well sanctioned and approved principles.

In any event, she asserts, the right to a writ of execution for alimony due within five years prior to the date of Lohman’s death is not subject to judicial discretion. The position of the executrix is that the affidavit of Jennie A. Lohman does not show that she used due diligence to collect the amounts awarded to her by the terms of the decree in her favor.

Other points urged in support of the ruling are that section 1880(3) of the Code of Civil Procedure applies to a proceeding for the issuance of an execution, that the appellant is precluded from giving evidence upon any claims or demand against the estate; that the notice of motion is fatally defective in that it failed to state the ground upon which the motion was to be made; and that the trial court did not abuse its discretion in ruling adversely to the appellant.

Section 685 of the Code of Civil Procedure provides: “In all cases 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, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of

section 681 of this code. The failure to set forth such reasons as shall, in the discretion- of the court, be sufficient, shall be ground for the denial of the motion. ’ ’ Under this statute the court may grant a judgment creditor leave to enforce his judgment by presenting a claim against the debtor’s estate, and by bringing an action thereon if the claim is rejected. (Saunders v. Simms, 183 Cal. 167 [190 P. 806]; Bank of America v. Katz, 45 Cal.App.2d 138 [113 P.2d 759] ; Pacific Gas & Elec. Co. v. Elks.

Duck Club, 39 Cal.App.2d 562 [103 P.2d 1030].) But such an order is subject to the same rules applicable to one which authorizes the issuance of execution more than five years after judgment was entered. It may only be made if, during the five years following entry of judgment, the execution creditor exercised due diligence in locating and levying upon property owned by the debtor, or in following available information to the point where a reasonable person would conclude that there was no property subject to levy within that time.

And even if the court is satisfied as to the diligence of the creditor in this respect, it may deny its process if the debtor shows circumstances occurring subsequent to the 5-year period upon which, in the exercise of a sound discretion, it should conclude that the creditor is not now entitled to collect his judgment. (Butcher v. Brouwer, 21 Cal.2d 354 [132 P.2d 205]; Beccuti v. Colombo Baking Co., 21 Cal.2d 360 [132 P.2d 207]; Hatch v.

Calkins, 21 Cal.2d 364 [132 P.2d 210].) Upon the issue of due diligence, the appellant relies upon certain conversations which she claims to have had with her former husband and other matters assertedly occurring before his death. Assuming that section 1880(3) of the Code of Civil Procedure, which limits the testimony of a party to an action or proceeding brought against an executor, does not make those statements in her affidavit inadmissible, they constitute the weakest and most unsatisfactory of all kinds of evidence. (Estate of Emerson, 175 Cal. 724 [167 P. 149]; Corison v.

Williams, 58 Cal.App. 282 [208 P. 331].) As against that affidavit, the counter-showing of the executrix cast doubt upon practically every material fact asserted by the appellant, and her claims in regard to the installment due in 1932 are directly at variance with the letter written by Mr. Lohman upon which she relies. Moreover, a trial judge is not required to accept as true the sworn testimony of a witness, even in the absence of evidence directly contradicting it, and this rule applies to an affidavit. (Berg v. Journeymen Plumbers etc.

Union, 5 Cal.App.2d 582 [42 P.2d 1091].) By the property settlement agreement, the appellant was given a lien upon stock having a value of $20,000. She does not claim that she was ignorant of the value of the property owned by Lohman or of his ability to make payments to her. At all times, it fairly may be inferred from her affidavit and the counteraffidavit of Zalla Lohman, she knew that payments of the sums due to her might be enforced by legal action. That course was not taken, she said, because of her confidence in her former husband and her desire not to harass him.

But if she chose, for more than five years, to rely upon his good intentions, as he expressed them to her, she cannot now say that she used the diligence which the law requires of her in the protection of her legal rights. But the right to enforce the payment of amounts due not more than five years before the date upon which the motion was made rests upon different principles.

Section 681 of the Code of Civil Procedure provides: ‘1 The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement.” In 1863, before the enactment of this section, it was held that the statute of limitations runs upon a judgment payable in installments from the date each installment becomes due. (DeUprey v.

DeUprey, 23 Cal. 352.) This principle was later applied in construing the code section, and it was held that the creditor is entitled, as a matter of right, to execution upon such a judgment for all amounts which have accrued within five years from the date of the application therefor. (Gaston v. Gaston, 114 Cal. 542 [46 P. 609, 55 Am.St.Rep. 786].) These decisions were followed in Cochrane v. Cochrane, 57 Cal.App.2d 937 [135 P.2d 714], and the statement in Shields v.

Superior Court, 138 Cal.App. 151 [31 P.2d 1045], to the effect that execution may not issue as a matter of right upon installments accruing within five years is disapproved. Although issuance of execution upon a judgment requiring monthly payments may be denied upon equitable grounds, proof that the installments have accrued within five years establishes a prima facie right to execution and the burden is cast upon the judgment debtor to establish facts justifying an order denying the writ. (Cochrane v. Cochrane, supra.) In the present case, the executrix did not deny the allegations of Jennie A.

Lohman as to the amount of indebtedness upon the judgment, nor was there any suggestion of a change of circumstances after the date of the final decree which would make it inequitable for alimony to be exacted.

The entire opposition to the motion was based upon the delay in enforcing the provisions of the judgment notwithstanding the creditor’s knowledge that her former husband “was engaged in business in the County of Los Angeles and was solvent. ’ ’ ■ The affidavits, therefore, do not directly present an issue as to whether Lohman, at the time of his death, had paid all amounts required by the judgment against him. The executrix does not take tlie position that the trial judge might have found from the evidence that there is nothing now unpaid.

On the contrary, she impliedly admits that all, or a substantial part, of the. amount claimed by Jennie A. Lohman has not been paid.

The defense is that the divorced wife did not act diligently to collect the amount awarded to her; also, that there is no one other than herself who now can prove the amount of her claim. “It may be,” says the executrix in her brief, “that appellant’s affidavit is correct in all details, but there is no one other than appellant who knows this, and the point is that she lost her right to give evidence on the matter by delaying until after the decedent’s death.” The effect of the letter written by Lohman should also be considered in connection with the rights of the judgment creditor under the provisions of

section 681 of the Code of Civil Procedure. If it be assumed that the statute, in effect, is one of limitation, and the letter, which was written in 1932, is sufficient to estop his executor from pleading its bar, such an estoppel only operates to start the time running again from the date of his acknowledgment of the debt. Under that theory the unqualified right to execution expired in April, 1937, and as there is no evidence that Lohman later acknowledged the obligation, the appellant may, therefore, have execution for amounts accruing before 1939 only by complying with the requirements of

section 685 of the Code of Civil Procedure. As to the point that the notice of motion is fatally .defective in that it failed to state any grounds upon which the motion was to be made, the statutory requirement .in that regard is for the benefit of the opposing party. Being for his benefit he may, of course, waive its provisions. By failing to object to the hearing of the motion at the time it was noticed to be heard, the executrix impliedly waived any defect in the notice in this regard. (Hecq v. Conner, 203 Cal. 504 [265 P. 180]; Mallory v. See, 129 Cal. 356 [61 P. 1123]; Barron v.

Deleval, 58 Cal. 95; Bonfield v. Bonfield, 71 Cal.App. 705 [236 P. 162].) Furthermore, the affidavit in support of the motion set forth certain facts upon which the motion was based, and sufficiently apprised the executrix of the grounds upon which the appellant relied for relief. (Hecq v. Conner, supra; Savage v. Smith, 170 Cal. 472 [150 P. 353]; Reher v. Reed, 166 Cal. 525 [137 P. 263, Ann.Cas. 19150 737]; Fink & Schindler Co. v.

Gavros, 72 Cal.App. 688 [237 P. 1083].) The contention of the executrix that the trial court properly denied the motion because, under section 1880(3) of the Code of Civil Procedure the appellant cannot give testimony against the estate, is also without merit. The difficulty of proof does not bar the right to maintain a legal proceeding and a court may not rest a decision upon an assumption concerning the nature of the evidence which will be proffered upon a hearing. The record does not show that the appellant must rely upon her own testimony to prove her claim and the provisions of

section 1880 may be waived by an executrix. (Deacon v. Bryans, 212 Cal. 87 [298 P. 30]; McClenahan v. Keyes, 188 Cal. 574 [206 P. 454]; Kinley v. Largent, 187 Cal. 71 [200 P. 937]; Cahill v. Goeche, 10 Cal.App.2d 279 [51 P.2d 905].) And the motion authorized by

section 685 of the Code of Civil Procedure is not a proceeding within the meaning of section 1880(3) of the same code. (Tolle v. Doak, 12 Cal.App.2d 195 [55 P.2d 542].) The order is reversed with directions to the trial court to enter an order authorizing Jennie A. Lohman to present a claim against the estate of Theodore G. Lohman for all amounts which accrued under the provisions of the decree in Lohman v. Lohman within five years prior to September 8, 1944, and to bring an action upon such claim in the event of its rejection. Gibson, C. J., and Traynor, J., concurred.