Cortez v. Superior Court of San Francisco

         The only question is, Did the superior court exceed its jurisdiction in making the order of May 15, 1890, granting execution? (People v. Dwinelle , 29 Cal. 632; C. P. R. R. v. Placer County , 46 Cal. 667; Muir v. Superior Court , 58 Cal. 361.) Its power to allow the commissioner's fees and expenses and make them a lien is not here subject to review. If the writ purported to review the original decree, it would be barred by laches. (Reynolds v. Superior Court , 64 Cal. 372.) The power to appoint commissioners includes the power to provide for their payment, and to charge the land therewith. The probate court may award costs, and issue execution therefor. ( Code Civ. Proc., sec. 1720.) Section 681 of the Code of Civil Procedure does not apply, as the commissioner is an officer of the court, and not a party to the judgment, plaintiff or defendant. ( Code Civ. Proc., secs. 308, 1063.) Section 685 of the Code of Civil Procedure applies, as the proceeding for partition was not for the recovery of money. The order staying proceedings excused the sheriff from returning the writ, and the time of the stay must be excluded from computation. (2 Freeman on Executions, 2d ed., sec. 353; Herman on Executions, p. 619, sec. 402.)

         JUDGES: In Bank. Paterson, J. Sharpstein, J., Fox, J., and McFarland, J., concurred.

         OPINION

          PATERSON, Judge

         Review. On August 3, 1883, a decree of partition of certain real estate was entered in the superior court, probate department, of the city and county of San Francisco. Mr. Wackenreuder, who performed the duty of commissioner in making the partition, was, by the decree, allowed a fee of $ 480 for his services and expenses incurred. It was provided in the decree that the sums so allowed to Wackenreuder, and "amounting to $ 480, be and the same are hereby charged and made a lien upon the land and premises partitioned." In July, 1888, the executors of Wackenreuder procured from the court an order of sale to satisfy the claim, with interest thereon from the date of the decree. On August 20, 1889, the court made an order requiring the executors of Wackenreuder to show cause why the order of sale should not be set aside, and an order was entered staying all proceedings. On May 15, 1890, the order under review herein granting an execution was made. It vacates the order to show cause, and the stay order, procured by the distributees of Ramirez's estate, August 20, 1889, finds the amount which had been paid on account of fees and expenses, the amount still unpaid, and directs execution therefor against the respective shares partitioned to the several parties, and made liable by the provisions of the decree. That portion of the decree which provides for the payment to Wackenreuder of $ 480 is, in effect, a judgment in his favor for that sum. It is a money judgment, and, if valid, one upon which he would have been entitled to an execution, if the probate court had the power to issue one at all, which is doubtful.

         The judgment, being one "for the recovery of money," so far as Wackenreuder was interested in it, could not be enforced by execution after the lapse of five years from the entry thereof. ( Code Civ. Proc., secs. 681, 685; Dorland v. Hanson , 81 Cal. 202; 15 Am. St. Rep. 44.) We think that Wackenreuder was "the party in whose favor judgment was given," within the meaning of the word "party" as used in section 681, supra. The order staying proceedings did not operate to suspend the running of the statute. (Solomon v. Maguire , 29 Cal. 237; Dorland v. Hanson, supra .) The order under review was in excess of the jurisdiction of the court. The court had no power to enforce the same after the lapse of five years. It had ceased to be operative (White v. Clark , 8 Cal. 513), assuming that the probate court had the power to declare a lien and to award an execution in satisfaction thereof, -- a question we deem it unnecessary to determine, in view of what has been said on the other point raised.

         The order is annulled.