17 Colo. App. 144 | Colo. Ct. App. | 1902
By this suit the plaintiff Olson sought to perpetually enjoin the sale of certain real estate by the sheriff, Daniels, one of defendants, under an execution
The contention of defendant in error in support of the ruling of the court is that the plaintiff in the judgment having failed to file the justice’s transcript in the office of the recorder of the county as required by statute, in order to give a judgment lien, had acquired no lien for his judgment, and that the mere issuance or levy of an execution being insufficient to give a lien, the homestead entry or withdrawal having been made before the sale was sufficient, and that the property thereupon became exempt. To this point counsel direct almost their entire brief.
In the case at bar the execution had not only been sued out, but had actually’been levied upon the property before the plaintiff took any-steps to avail himself of the statutory privilege of exemption. The lien of the exée’ution had already attached by virtue' of the levy, and his efforts to obtain exemption came too late. The homestead law' should be, and is, liberally .construed, but it would bé carrying construction beyond all reason, as well as beyond all precedent, to hold that the legislature intended to give a householder the right of exemption from execution after the property had been actually levied upon, and taken under execution, and the lien of the execution had attached. This would be unwarranted interference with vested rights, and neither the language nor reason of the statute would justify such a construction.
Plaintiff seems to deny, however, that there was a legal or sufficient levy of the execution. We think that there was. The statute of Colorado prescribes no particular method of procedure for the levy of an execution upon real estate where the property is in the same county in which the judgment is rendered, or in which the execution is issued.' As to how it shall be made, or how it should be evidenced, the statute is silent. In considering this question, this court said: “As the officer cannot reduce the land to possession, or do any act upon it against the will of the owner, all that can be- required is, that he designate the particular land which he intends to subject to his-'execution in such a way that it may be-identi
The contention of plaintiff that the levy was invalid because the sheriff had not made a record of it upon the records in his office, is without, force.—Herr v. Broadwell, supra.
For these reasons we are of opinion that the
The judgment will be reversed.
Reversed.