Miller v. United States, 11366.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | DENMAN, HEALY and BONE, Circuit |
| Citation | 160 F.2d 608 |
| Parties | MILLER v. UNITED STATES. |
| Docket Number | No. 11366.,11366. |
| Decision Date | 03 April 1947 |
160 F.2d 608 (1947)
MILLER
v.
UNITED STATES.
No. 11366.
Circuit Court of Appeals, Ninth Circuit.
April 3, 1947.
Arthur V. Kaufman, of Los Angeles, Cal., for appellant.
James M. Carter, U. S. Atty., Ronald Walker, Asst. U. S. Atty., and Clarke E. Stephens, Asst. U. S. Atty., all of Los Angeles, Cal., and James E. Palmer, Jr., Sp. Asst. to the Atty. Gen., for appellee.
Before DENMAN, HEALY and BONE, Circuit Judges.
DENMAN, Circuit Judge.
This is an appeal from a judgment on the pleadings in a cause of action based upon a prior judgment entered in 1933, for the amount of a fine, a part of a criminal sentence on conviction of a federal offense in the United States District Court for the Southern District of California.
Appellant does not question that such judgment for a fine is a cause of action for the recovery of a second judgment. Smith v. United States, 9 Cir., 143 F.2d 228, certiorari denied 323 U.S. 729, 65 S.Ct. 65, 89 L.Ed. 585. His sole contention is that the denial of a prior petition in 1945 in the criminal case for execution upon the sentence of 1933 is res judicata that the sentence is not even a dormant judgment and, in effect that the amount of the fine is no longer due and owing the government.
This petition for the writ of execution on the fine was brought under the California law pursuant to Rule 69 of the Federal
"Rule 69. Execution
"(a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. * * *"
Under the California Code of Civil Procedure, Section 681, execution on such a judgment cannot issue after five years from its entry, plus the time during which the execution is stayed, except by a proceeding under the first paragraph of Section 685. The latter section reads
"In all cases the judgment may be enforced or carried into execution after the lapse of five years from date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an...
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Juneau Spruce Corp. v. INTERNATIONAL LONG. & W. UNION, No. 1409.
...on the judgment itself, Custer v. McCutcheon, 1931, 283 U.S. 514, 519, 51 S.Ct. 530, 75 L.Ed. 1239; Miller v. United States, 9 Cir., 1947, 160 F.2d 608. A California type statute of limitations renders the judgment itself to be presently non-valid and non-subsisting, and must be distinguish......
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United States v. Welborn, No. C-79-45-W.
...Castle v. United States, 399 F.2d 642, 644 n. 3 (5th Cir. 1968). The same circuit reached a like result in Miller v. United States, 160 F.2d 608 (9th Cir. 1947), where the government sued in 1947 to recover on a criminal fine imposed in 1933. The defendant conceded, and the court found, tha......
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United States v. Jenkins, Civ. No. 822.
...circumstances a penal judgment may be enforced by the United States." The Court in deciding the case of Miller v. United States, 9 Cir., 160 F.2d 608, 609, also "Rule 69 of the Federal Rules, supra, makes applicable the California law only as to the remedies of execution and other proceedin......
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U.S. v. Febre, No. 91-2716
...play, and thus state law is not applicable, until after the foreign judgment has been properly registered. Cf. Miller v. United States, 160 F.2d 608, 609 (9th Cir.1947) (state law held not applicable through Rule 69 because "[w]e do not regard the cause of action for a new judgment as a pro......
-
Juneau Spruce Corp. v. INTERNATIONAL LONG. & W. UNION, No. 1409.
...on the judgment itself, Custer v. McCutcheon, 1931, 283 U.S. 514, 519, 51 S.Ct. 530, 75 L.Ed. 1239; Miller v. United States, 9 Cir., 1947, 160 F.2d 608. A California type statute of limitations renders the judgment itself to be presently non-valid and non-subsisting, and must be distinguish......
-
United States v. Welborn, No. C-79-45-W.
...Castle v. United States, 399 F.2d 642, 644 n. 3 (5th Cir. 1968). The same circuit reached a like result in Miller v. United States, 160 F.2d 608 (9th Cir. 1947), where the government sued in 1947 to recover on a criminal fine imposed in 1933. The defendant conceded, and the court found, tha......
-
United States v. Jenkins, Civ. No. 822.
...circumstances a penal judgment may be enforced by the United States." The Court in deciding the case of Miller v. United States, 9 Cir., 160 F.2d 608, 609, also "Rule 69 of the Federal Rules, supra, makes applicable the California law only as to the remedies of execution and other proceedin......
-
U.S. v. Febre, No. 91-2716
...play, and thus state law is not applicable, until after the foreign judgment has been properly registered. Cf. Miller v. United States, 160 F.2d 608, 609 (9th Cir.1947) (state law held not applicable through Rule 69 because "[w]e do not regard the cause of action for a new judgment as a pro......