and Amdts. 1900-1, p. 157, act held unconstitutional, see history, Kerr's Cyc. C. C. § 4; amended March 19, 1907, Stats. and Amdts. 1907, p. 685, Kerr's Stats. and Amdts. 1906-7, p. 459. § 715. PROCEEDINGS TO COMPEL DEBTOR TO APPEAR. IN WHAT CASES HE MAY BE ARRESTED. WHAT BAIL MAY BE GIVEN. After the issuing of an execution against property, and upon proof, by affidavit of a party or otherwise, to the satisfaction of a judge of the court, that any judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such judge may, by an order, require the judgment debtor to appear, at a specified time and place, before such judge, or a referee appointed by him, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor absconding, order the sheriff to arrest the debtor and bring him before such judge. Upon being brought before the judge, he may be ordered to enter into an undertaking, with sufficient surety, that he will attend from time to time before the judge or referee, as may be directed during the pendency of proceedings and until the final termination thereof, and will not in the mean time dispose of any portion of his property not exempt from execution. In default of entering into such undertaking he may be committed to prison. History: Enacted March 11, 1872, re-enactment of § 239 Practice Act as amended 1854 (Stats. 1854, p. 84); amended March 9, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 5. § 716. ANY DEBTOR OF THE JUDGMENT DEBTOR MAY PAY THE LATTER'S CREDITOR. After the issuing of an execution against property, and before its return. any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution; and the sheriff's receipt is a sufficient discharge for the amount so paid. History: Enacted March 11, 1872, re-enactment of § 240 Practice Act. § 717. EXAMINATION OF DEBTORS OF JUDGMENT DEBTOR, OR OF THOSE HAVING PROPERTY BELONGING TO HIM. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same. History: Enacted March 11, 1872, substantial re-enactment of § 241 Practice Act; amended by Code Commission, Act March 8, 1901, Stats. and Amdts. 1900-1, p. 157, act held unconstitutional, see history, Kerr's Cyc. C. C. §4; amended March 19, 1907, Stats. and Amdts. 1907, p. 685, Kerr's Stats. and Amdts. 1906-7, p. 459. § 718. WITNesses reqUIRED TO TESTIFY. Witnesses may be required to appear and testify before the judge or referee, upon any proceeding under this chapter, in the same manner as upon the trial of an issue. History: Enacted March 11, 1872, re-enactment of § 242 Practice Act. § 719. JUDGE MAY ORDER PROPERTY TO BE APPLIED ON EXECUTION. The judge or referee may order any property of the judgment debtor, not exempt from execution, in the hands of such debtor, or any other person, or due to the judgment debtor, to be applied toward the sat isfaction of the judgment; but no such order can be made as to money or property in the hands of any other person or claimed to be due from him to the judgment debtor, if such person claims an interest in the property adverse to the judgment debtor or denies the debt. History: Enacted March 11, 1872, re-enactment in part of § 243 Practice Act; amended by Code Commission, Act March 8, 1901, Stats. and Amdts. 1900-1, p. 157, act held unconstitutional, see history, Kerr's Cyc. C. C. § 4; amended March 19, 1907, Stats. and Amdts. 1907, p. 685, Kerr's Stats. and Amdts. 1906-7 p. 459. § 720. PROCEEDINGS UPON CLAIM OF ANOTHER PARTY TO PROPERTY, OR ON DENIAL OF INDEBTEDNESS TO JUDGMENT DEBTOR. If it appears that a person or corporation, alleged to have property of the judgment debtor, or to be indebted to him, claims an interest in the property adverse to him, or denies the debt, the judgment creditor may maintain an action against such person or corporation for the recovery of such interest or debt; and the court or judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order may be modified or vacated by the judge granting the same, or the court in which the action is brought, at any time, upon such terms as may be just. History: Enacted March 11, 1872, re-enactment of $244 Practice Act; amended by Code Commission, Act March 8, 1901, Stats, and Amdts. 1900-1, p. 157, act held unconstitutional, see history, Kerr's Cyc. C. C. § 4; amended March 19, 1907, Stats. and Amdts. 1907, p. 686, Kerr's Stats, and Amdts. 1906-7, p. 459. § 721. DISOBEDIENCE OF ORDERS, HOW PUNISHED. If any person, party, or witness disobey an order of the referee, properly made, in the proceedings before him under this chapter, he may be punished by the court or judge ordering the reference, for a contempt. History: Enacted March 11, 1872, re-enactment of § 245 Practice Act. TITLE X. ACTIONS IN PARTICULAR CASES. Chapter I. Actions for the Foreclosure of Mortgages, §§ 726-729. II. Actions for Nuisance, Waste, and Wilful Tres- III. Actions to Determine Conflicting Claims to Real V. Actions for the Usurpation of an Office or Fran- VI. Of Actions against Steamers, Vessels, and Boats, §§ 813-827. CHAPTER I. ACTIONS FOR THE FORECLOSURE OF MORTGAGES. § 726. Proceedings in foreclosure suits. § 727. Surplus money to be deposited in court. § 728. § 729. Proceedings when debt secured falls due at different times. Oath and undertaking of commissioner. § 726. PROCEEDINGS IN FORECLOSURE SUITS. There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real or personal property, which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct the sale of the encumbered prop erty (or so much thereof as may be necessary), and the application of the proceeds of the sale to the payment of the costs of court, and the expenses of the sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorney's fees, such sum for such fees as the court shall find reasonable, not exceeding the amount named in the mortgage. [Appointment of commissioner to sell-Undertaking of.] The court may, by its judgment, or at any time after judgment, appoint a commissioner to sell the encumbered property. It must require of him an undertaking in an amount fixed by the court, with sufficient sureties, to be approved by the judge, to the effect that the commissioner will faithfully perform the duties of his office according to law. Before entering upon the discharge of his duties he must file such undertaking, so approved, together with his oath that he will faithfully perform the duties of his office. If it appear from the sheriff's return, or from the commissioner's report, that the proceeds are insufficient, and a balance still remains due, judgment must then be docketed by the clerk in the manner provided in this code for such balance against the defendant or defendants personally liable for the debt, and it becomes a lien on the real estate of such judgment debtor, as in other cases in which execution may be issued. [Who not necessary parties.] No person holding a conveyance from or under the mortgager of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the time of the commencement of the action, need be made a party to such action, and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been a party to the action. [Commissioner must sell, how.] If the court appoints a commissioner for the sale of the property, he must sell it in the manner provided by law for the sale of like property by |