68 P. 111 | Cal. | 1902
This action is based upon section 693 of the Code of Civil Procedure, and is against a constable and his *4 sureties, to recover the penalty and damages for selling personal property belonging to the plaintiff under a writ of execution, without giving the notice required by law.
It is contended by plaintiff that the execution was void because not dated, but this point will not be further noticed than to say that the action implies, and for its maintenance requires, a valid execution, and the point is therefore, as to plaintiff's case, felo de se.
Five days' notice is required by the statute. The notice was posted on February 20th, and the sale was made, as advertised, on February 25th. If section
Of course, where the law fixes the time within which an act is to be done, all of the last day of that period is within the time, and a default for not doing the act could only be taken on the next day. How this rule would apply, or whether it was applicable at all, to the different case, where notice for a definite period was required before an act could be done, was at least doubtful before these decisions.
The rule having been thus established, however, there is no occasion now to depart from it. If the rule of section
This point being decided against the plaintiff his action must fail, and the judgment be affirmed without reference to other questions discussed.
Judgment and order are affirmed.
McFarland, J., and Henshaw, J., concurred.