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as mentioned in the last section, it may be brought by either party before the court for argument.--[Am. May 15, 1854; R. S. St. 1851, 82 ; St. 1850, 442; C. L. 554.
Art. 933, Sec. 199. If a counter claim, established at the trial, exceed the plaintiff's demand, so established, judgment for the defendant shall be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment shall be given accordingly.
Art. 934, Sec. 200. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereot in case a return cannot be had, and damages for taking and withholding the same.
Art. 935, Sec. 201. The clerk shall keep among the records of the court a book for the entry of judgments, to be called the “ Judgment Book,” in which each judgment shall be entered, and shall specify clearly the relief granted, or other determination of the action.
Art. 936, Sec. 202. If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment shall not be a lien on the real property of the deceased party, but shall be payable in the course of administration on his estate.
Art. 937, Sec. 203. Immediately after entering the judgment, the clerk shall attach together and file the following papers, which shall constitute the judgment roll : 1. In case the complaint be not answered by any defendant, the summons with the affidavit or proof of service, and the complaint, with a memorandum indorsed on the complaint, that the default of the defendant in not answering was entered, and a copy of the judgment. 2. In all other cases, the summons, pleadings and a copy of the judgment, and any orders relating to a change of the parties.
Art. 938, Sec. 204. Immediately after filing judgment roll, the clerk shall make the proper entries of the judgment, under appropriate heads, in the docket kept by him; and from the time the judgment is docketed, it shall become a lien upon all the real property of the judgment debtor, not exempt from execution in the county owned by him at the time, or which he may afterwards acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied. (1)
ART. 939, Sec. 205. The docket mentioned in the last section is a book which the clerk shall keep in his office, with each page divided into eight columns, and headed as follows: judgment debtors; judgment creditors; judgment; time of entry; where entered in judgment book; appeals, when taken ; judgment of appellate court; satisfaction of judgment, when entered. If judgment be for the recovery of money or damages, the amount shall be stated in the docket under the head of judgment; if the judgment be for any other relief, a memorandum of the general character of the relief granted shall be stated. The names of the defendants shall be entered in the docket in alphabetical order.
Art. 940, Sec. 206. The docket kept by the clerk shall be open at all times during office hours for the inspection of the public, without charge; and it shall be the duty of the clerk to arrange the several dockets kept by him in such a manner as to facilitate their inspection.
Art. 941, Sec. 207. A transcript of the original docket certified by the clerk may be filed with the recorder of any other county, and from the time of the filing the judgment shall become a lien upon all the real property of the judgment debtor not exempt from execution in such county owned by him at the time,
(1) Low et al. v. Adams, July T. 1856.
or which he may afterwards acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied.
Art. 942, Sec. 208. Satisfaction of a judgment may be entered in the clerk's docket upon an execution returned satisfied, or upon an acknowledgment of contract filed with the clerk, made in the manner of an acknowledgment of a conveyance of real property, by the judgment creditor; or within one year after the judgment by the attorney, unless a revocation of his authority be previously filed. Whenever a judgment shall be satisfied in fact, otherwise than upon an execution, it shall be the duty of the party, or attorney, to give such acknowledgment, and
upon motion the court may compel it, or may order the entry of satisfaction to be made without it.
7. Execution. ART. 943, Sec. 209. The party in whose favor judgment is given, may, at any time within five years after the entry thereof, issue a writ of execution for its enforcement, as prescribed in this chapter.(1)
ART. 944, Sec. 210. The writ of execution shall be issued in the name of the people, sealed with the seal of the court, and subscribed by the clerk, and shall be directed to the sheriff, and shall intelligibly refer to the judgment, stating the court, the county where the judgment roll is filed, the names of the parties, the judgment, and if it be for money, the amount thereof, and the amount actually due thereon, and shall require the sheriff substantially as follows: 1. If it be against the property of the judgment debtor, it shall require the sheriff
' to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of his real property; or if the judgment be a lien upon real property, then out of the real property belonging to him on the day when the judgment was docketed, or if the execution be issued to a county other than the one in which the judgment was recovered on the day when the transcript of the docket was filed in the office of the recorder of such county, stating such day, or at any time thereafter. 2. If it be against real or personal property, in the hands of the personal representatives, heirs, devisees, legatees, tenants of real property or trustees, it shall require the sheriff to satisfy the judgment, with interest, out of such property. 3. If it be against the person of the judgment debtor, it shall require the sheriff to arrest such debtor, and commit him to the jail of the county, until he pay the judgment, with interest, or be discharged according to law. 4. If it be for the delivery of the possession of real or personal property, it shall require the sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the sheriff to satisfy any costs, damages, rents or profits, recovered by the same judgment, out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein, if a delivery thereof cannot be had; and if sufficient personal property cannot be found, then out of real property, as provided in the first subdivision of this section.
Art. 945, Sec. 211. When a writ of execution is issued on a judgment recovered against two or more persons, in an action upon a joint contract, in which action all the defendants were not served with summons, or did not appear,
it shall direct the sheriff to satisfy the judgment out of the joint property of all the defendants, and the individual property only of the defendants who were served, or who appeared in the action. In other respects, the writ shall contain the directions specified in the first subdivision of the last section.
Art. 946, Sec. 212. The execution may be made returnable at any time, not less than ten nor more than sixty days after its receipt by the sheriff, to the clerk with whom the judgment roll is filed.
Art. 947, Sec. 213. Where a judgment requires the payment of money, or the delivery of real or personal property, the same shall be enforced in those respects,
(1) Arts. 943—971.
by execution. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or upon the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced.
Art. 948, Sec. 214. After the lapse of five years from the entry of judgment, an execution shall be issued only by leave of the court, on motion. Such leave shall not be given, unless it be established by the oath of the party, or other proof, that the judgment, or some part thereof, remains unsatisfied and due.
Art. 949, Sec. 215. Notwithstanding the death of a party after the judgment, execution thereon against his property may, upon permission granted by the probate court, be issued and executed in the same manner, and with the same effect, as if he were still living.
Art. 950, Sec. 216. Where the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county in the state. Where it requires the delivery of real or personal property, it shall be issued to the sheriff of the county where the property or some part thereof
, is situated. Executions may be issued, at the same time, to different counties.
ART. 951, Sec. 217. All goods, chattels, moneys and other property, real and personal, of the judgment debtor, not exempt by law, and all property and rights of property seized and held under attachment in the action, shall be liable to execution. Until a levy, property shall not be affected by the execution. Shares and interests in any corporation or company, and debts and credits and other property not capable of manual delivery, may be attached on execution in like manner as upon writs of attachment. Gold dust shall be returned by the officer as so much money collected at its current value, without exposing the same to sale. (1)—[Am. May 15, 1854; R. S. St. 1851, 85; St. 1850, 444; C. L. 558.
ART. 952, Sec. 218. If the property levied on be claimed by a third person as his property, the sheriff shall summon from his county six persons qualified as jurors between the parties, to try the validity of the claim. He shall also give notice of the claim, and of the time of trial, to the plaintiff, who may appear and contest the claim before the jury. The jury and the witnesses shall be sworn by the sheriff, and if their verdict be in favor of the claimant, the sheriff may relinquish the levy, unless the judgment creditor give him a sufficient indemnity for proceeding thereon. The fees of the jury, the sheriff and the witnesses shall be paid by the claimant, if the verdict be against him; otherwise, by the plaintiff. On the trial the defendant and the claimant may be examined by the plaintiff as witnesses.
Art. 953, Sec. 219. The following property shall be exempt from execution, except as herein otherwise specially provided : 1. Chairs, tables, desks and books, to the value of one hundred dollars, belonging to the judgment debtor. sary household, table and kitchen furniture, belonging to the judgment debtor, including stove, stove pipe and stove furniture, wearing apparel, beds, bedding and bedsteads, and provisions actually provided for individual or family use, sufficient for one month. 3. The farming utensils or implements of husbandry of the judgment debtor, also, two oxen, or two horses, or two mules, and their harness, two cows, and one cart or wagon, and food for such oxen, horses, cows or mules for one month. 4. The tools and implements of a mechanic, necessary to carry on his trade, the instruments and chests of a surgeon, physician, surveyor and dentist, necessary to the exercise of their profession, with the professional library and the law libraries of an attorney or counselor. 5. The tent and furniture, including a table, camp stools, bed and bedding of a miner; also, his rocker, shovels, spades, wheelbarrows, pumps and other instruments used in mining, with provisions necessary for his support for one month. 6. Two oxen, or two horses, or two mules, and their harness, and one cart or wagon, by the use of which a
(1) Low et al. v. Adams, July T. 1856.
cartman, teamster or other laborer habitually earns his living, and food for such oxen, horses or mules for one month ; and a horse, harness and vehicle used by a physician or surgeon in making his professional visits. 7. All fire engines, with the carts, buckets, hose and apparatus thereto appertaining, of any fire company or department, organized under any law of this state. 8. All arms and accouterments required by law to be kept by any person ; but no article mentioned in this section shall be exempt from execution issued on a judgment recovered for its price, or upon a mortgage thereon. 9. All court-houses, jails, public offices and buildings, lots, grounds and personal property, belonging to any county of this state, and all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings appertaining to the fire departments, and the lots and grounds thereunto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by such town or city to health, ornament or public use. (1)-[Am. May 15, 1854; R. S. St. 1851, 85; C. L. 559.
The following described property, belonging to each county in this state, is hereby declared exempt from forced sale under execution or other process from any court : 1. The court-house, jail, public buildings and offices, together with any lots or land belonging to the county. 2. The fixtures, furniture, books, papers and appurtenances belonging and pertaining to the court-house, jail and public offices.-Act May 1, 1854, in.
ART. 954, Sec. 220. The sheriff shall execute the writ against the property of the judgment debtor, by levying on a sufficient amount of property, if there be sufficient; collecting or selling the things in action, and selling the other property, and paying to the plaintiff or his attorney so much of the proceeds as will satisfy the judgment, or depositing the amount with the clerk of the court; any excess in the proceeds over the judgment and the sheriff's fees shall be returned to the judgment debtor. When there is more property of the judgment debtor than is sufficient to satisfy the judgment and the sheriff's fees, within the view of the sheriff, he shall levy on only such part of the property as the judgment debtor may indicate ; provided, that the judgment debtor be present at, and indicate at the time of the levy, such part; and, provided, that the property indicated be amply sufficient to satisfy such judgment and fees.
ART. 955, Sec. 221. Before the sale of property on execution, notice thereof shall be given, as follows: 1. In case of perishable property, by posting written notice of the time and place of sale, in three public places of the township or city where the sale is to take place, for such a time as may be reasonable, considering the character and condition of the property. 2. In case of other personal property, by posting a similar notice in three public places of the township or city where the sale is to take place, not less than five nor more than ten days successively. In case of real property, by posting a similar notice, particularly describing the property, for twenty days successively, in three public places of the township or city where the property is situated, and also where the property is to be sold; and publishing a copy thereof once a week for the same period, in a newspaper in the county, if there be one. Art. 956, Sec. 222. An officer selling without the notice prescribed by the last section shall forfeit five hundred dollars to the aggrieved party, in addition to his actual damages; and a person willfully taking down or defacing the notice posted, if done before the sale or the satisfaction of the judgment (if the judgment be satisfied before sale), shall forfeit five hundred dollars.
Art. 957, Sec. 223. All sales of property under execution shall be made at auction, to the highest bidder, and shall be made between the hours of nine in the morning and five in the afternoon; after sufficient property has been sold to satisfy the execution, no more shall be sold. Neither the officer holding the execution nor his deputy shall become a purchaser, or be interested in any purchase
(1) Quigley v: Gorham, 5 Cal. 418.
at such sale. When the sale is of personal property, capable of manual delivery, it shall be within view of those who attend the sale, and be sold in such parcels as are likely to bring the highest price; and when the sale is of real property, and consisting of several known lots or parcels, they shall be sold separately; or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion shall be thus sold. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles which can be sold to advantage separately; and the sheriff shall be bound to follow such directions. (1)
Art. 958, Sec. 224. If a purchaser refuse to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property, at any time, to the highest bidder, and if any loss be occasioned thereby the officer may recover the amount of such loss, with costs, by motion, upon previous notice of five days, before any court, or before any justice of the peace, if the same shall not exceed his jurisdiction.
Art. 959, Sec. 225. Such court or justice shall proceed in a summary manner and give judgment, and issue execution therefor forth with, but the defendant may claim a jury. And the same proceedings may be had against any subsequent purchaser who shall refuse to pay, and the officer may, in his discretion, thereafter reject the bid of any person so refusing.
Art. 960, Sec. 226. The two preceding sections shall not be construed to make the officer liable for any more than the amount bid by the second, or subsequent purchaser, and the amount collected from the purchaser refusing to pay.
Art. 961, Sec. 227. When the purchaser of any personal property capable of manual delivery shall pay the purchase money, the officer making the sale shall deliver to the purchaser the property, and if desired shall execute and deliver to him a certificate of the sale and payment. Such certificate shall convey to the purchaser all the right, title and interest which the debtor had in and to such property on the day the execution was levied.
ART. 962, Sec. 228. When the purchaser of any personal property not capable of manual delivery shall pay the purchase money, the officer making the sale shall execute and deliver to the purchaser a certificate of sale and payment. Such certificate shall convey to the purchaser all right, title and interest which the debtor had in and to such property on the day the execution was levied.(2)
Art. 963, Sec. 229. Upon a sale of real property, when the estate is less than a leasehold of two years' unexpired term, the sale shall be absolute. In all other cases, the real property sold shall be subject to redemption, as provided in this chapter. The officer shall give to the purchaser a certificate of the sale, containing: 1. A particular description of the real property sold. 2. The price bid for each distinct lot or parcel. 3. The whole price paid. 4. When subject to redemption, it shall be so stated, a duplicate of which certificate shall be filed by the officer with the recorder of the county.(3)
ART. 964, Sec. 230. Property sold subject to redemption, as provided in the last section, or any part sold separately, may be redeemed in the manner hereinafter provided, by the following persons, or their successors in interest: 1. The judgment debtor, or his successor in interest, in the whole or any part of the property. 2. A creditor, having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdivision of this section are, in this chapter, termed redemptioners.
Art. 965, Sec. 231. The judgment debtor, or a redemptioner, may redeem the property from the purchaser within six months after the sale, on paying the pur(1) Duprey v. Duprey, 4 Cal. 196. (2) Loring v. Illsley, 1 Cal. 24; Guy v. Middleton, 6 Cal. 392. (3) Kent v. Laffan, 2 Cal. 595; Vandyke v. Herman, 3 Cal. 295.