Daniel v. Barengo

• Decision Date: 10 November 1978
• Docket Number: No. 9131,9131
• Citation: 94 Nev. 697,585 P.2d 1348
• Parties: Elizabeth Webster DANIEL, Appellant, v. Rosmino Natale BARENGO, Respondent.
• Court: Nevada Supreme Court

Page 1348

585 P.2d 1348

94 Nev. 697

Elizabeth Webster DANIEL, Appellant, v. Rosmino Natale BARENGO, Respondent.

No. 9131.

Supreme Court of Nevada.

Nov. 10, 1978.

[94 Nev. 698] Laub, Clark & Hall, Ltd., and Glade L. Hall, Reno, for appellant.

Halley & Halley and Michael K. Halley, Reno, for respondent.

OPINION

PER CURIAM:

On December 3, 1969, appellant obtained a judgment against respondent in the amount of $11,035.80. Nearly six years later, on November 26, 1975, appellant sought, and was issued, a writ of execution on the judgment pursuant to NRS 21.010. ¹ The writ commanded the Sheriff of Washoe County to satisfy the judgment out of certain real property owned by respondent in Washoe County, Nevada. On December 3, 1975, the judgment lien expired. On January 15, 1976, the Sheriff levied upon respondent's property in Washoe County.

The sale of this property was postponed until March 11, 1976, and, on that date, respondent sought an injunction to stop the sale contending the writ of execution was not enforceable because the levy occurred after expiration of the statutory judgment lien and after an action on the judgment became barred by the six-year statute of limitations. See NRS 17.150; NRS 11.190. The district court agreed and issued a permanent injunction enjoining the sheriff and appellant from selling the subject property.

Appellant contends the district court erred because NRS 21.010 does not require her to levy on the property prior to the expiration of the judgment lien, but rather, requires only that she obtain a writ of execution "at any time within 6 years after the entry" of the judgment. We agree.

NRS 21.010 cannot be construed to require all proceedings under the writ of execution to be completed prior to the expiration of the six-year period. See Alonso Investment Corporation, Inc. v. Doff, 17 Cal.3d 539, 131 Cal.Rptr. 411, 551 P.2d 1243 (1976). Cf. In re Jackman's Estate, 344 Mo. 49, 124 S.W.2d 1189 (1939). We approve the rationale of the Missouri Supreme Court in Wayland v. Kansas City, 321 Mo. 654, 12 S.W.2d 438, 441 (1928) where the Court stated:

When the Legislature said that an execution could issue at any time within (six) years after the rendition of the judgment, it meant that an execution, with all subsequent proceedings usually attending thereon, could issue on the last day of the (six)-year period, and be just as effective in respect to property seized under its levy as if such execution had issued immediately after the rendition of the judgment. As we construe (NRS 21.010), the validity of a sale under the levy of an execution is not determined by the date of such sale, but by the date of the issuance of the...