119 Cal. 192 | Cal. | 1897
A decision was rendered in Department directing the reversal of the judgment obtained by plaintiff in this cause, on the ground that the case was not cognizable in the superior court, the amount in controversy appearing on the record as presented to be less than three hundred dollars. Subsequently, on the petition of respondent, accompanied by a suggestion of diminution of the record and a certified copy of matter said to have been omitted therefrom, a hearing in Bank was ordered by the court; not, as we understand, because the conclusion of the Department was considered to be erroneous on the record as filed, but because this, when supplemented by said omitted matter, was deemed to show a ease of which the court below had jurisdiction.
The more material facts are stated in the former opinion; it may be added that some part of the lands levied upon stood on the records of the county in the names of persons not parties to the execution. The county was joined as a defendant for the reason, apparently, that its treasury, and not the sheriff personally, is the ultimate beneficiary of the fees collected by him. We are to inquire what things were necessary to be done by the sheriff in order to make a proper levy of an execution, on lands already subject to the lien of the judgment on which the writ was issued; not merely the procedure which would make a subsequent v sale of the land good in favor of a purchaser and against the defendant in the execution (which was the question decided in Blood v. Light, 38 Cal. 649, 99 Am. Dec. 441), but what acts were necessary to a full performance of the officer’s duty so as to protect him against any charge of dereliction; for such acts he might claim legal fees, but for none others. The substance of those provisions of the Code of Civil Procedure which most nearly touch the subject is as follows: Section 542 relates to the method of exe
It is seen that section 693 makes the levying of the writ a part of the process of executing it. The term “levy,” when employed, to connote the acts by which an officer manifests the intent to appropriate land to the satisfaction of an execution, and when not defined by statute, has considerable elasticity of meaning; so probably for the reason that as the common law permitted no levy of the writ on lands, it devised no procedure for that purpose. In one state, a statute provided that a “levy” should be understood to be the actual seizure of property by the officer
In Wood v. Colvin, 5 Hill, 228, it was held that when the judgment on which execution has issued is a lien upon land it is unnecessary to make a formal levy of the writ before proceeding to sell; and this has been said here to be the correct rule. (Bagley v. Ward, 37 Cal. 132; 99 Am. Dec. 256.) But the statute (Code Civ. Proc., sec. 691) evidently contemplates that levying is something different from selling, and it is urged in support of the appeal that the levy thus required must be made in the manner described in section 688, viz., “in like manner as upon writs of attachment,” by filing a copy of the writ in the office of the recorder, etc. Upon careful consideration, our conclusion is different; the purpose of the provisional remedy of attachment is to obtain security for the satisfaction of any judgment that may be recovered in the action (Code Civ. Proc., sec. 537); so the purpose of attaching under the writ of execution, as permitted by section 688, is to obtain security for the satisfaction of a judgment previously recovered; but, when such judgment is already a lien, the main object of an attachment has been accomplished. Again, if to levy an execution on lands in obedience to said section 691 necessarily means attaching them in like manner as upon writs of attachment, then although there may have been first a regular statutory levy of a writ of attachment in the action, the lien of which was preserved by the judgment (Porter v. Pico, 55 Cal. 174), it would still be indispensable, when the execution issues, to repeat with the latter writ the proceedings taken under
In Bagley v. Ward, supra, the court seems to have been disposed to concede that by the provision that “property may he attached on execution in like manner as upon writs of attachment,” then contained in section 21? of the practice act, the legislature intended to require, in all cases, for the levy of ah execution, the filing in the recorder’s office of a copy of the writ with a description of the property levied upon, as in the case of an attachment; “hut,” said the court, “however this may have been, it is now too late to insist on that construction. The practice has been almost uniform since the adoption of that provision in 1851, to omit the filing of a copy of the execution in the recorder’s office.” Bagley v. Ward illustrates the practice then understood to be prevalent; there has been no change in the statutes material to the question since that time; and, of course, if filing a copy of the writ in the recorder’s office might he omitted, so might the other steps necessary to the levy of a writ of attachment. The clause of section 688 that, “until a levy, property is not affected by the execution,” has no hearing in the present controversy. (Blood v. Light, supra.)
It was remarked in Southern Cal. etc. Co. v. Ocean Beach Hotel Co., 94 Cal. 223, 28 Am. St. Rep. 115, that the act of the officer by which he indicates the particular property which he intends to sell under the execution is called a levy. The conclusion stated more at large by Shaw, C. J., in Hall v. Crocker, 3 Met. 245, is similar: “The statute having fixed upon no specific act which will constitute the seizure of land on execution, the court are of the opinion that when an execution has been delivered to an officer, with directions to levy the same on the real estate of the debtor, and the officer accepts the execution with such directions, and consents and undertakes to execute it, any act done by him in pursuance of that purpose is a beginning to execute it, and constitutes a seizure; and the making of a memorandum which enables him to fix the date of such act, and make his return, is sufficient for this purpose.” With us, the officer is required to give notice of the sale of real property under execution by posting notices thereof in the township or city where the property
It is not perceived that the case is affected by the circumstance that some of the land on which the sheriff levied stands on the records of the county in the names of persons not parties to the writ. The judgment lien or the levy or the subsequent sale could in no event operate on any interest in the land not in fact owned by the defendant. While it may, possibly, be desirable' that third persons thus situated should be apprised specially of the proceeding, yet the law has not so provided. Their position is no worse than that of persons who claim land by title paramount to that of a mortgagor or other defendant in a suit where sale of the property is specifically decreed; the process issued to enforce such a judgment (Code Civ. Proc., sec. 684) is always executed without notice other than that given to the general public by the ordinary posting and advertisement. The judgment appealed from should be affirmed.
Chipman, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.
Temple, J., Henshaw, J., McFarland, J.,
Harrison, J., Garoutte, J.
The following is the decision rendered in Department One, March 10, 1897, referred to in the foregoing opinion:
Plaintiff sues, as the assignee of one Hinton, to recover from defendant Jennings (who is sheriff of the defendant county) money paid by Hinton to J ennings, as fees demanded by the latter for official services in the levy of a writ of execution. Allegations appear in the complaint showing with considerable detail that the question arose between Hinton and the sheriff whether, in levying an execution issued on an ordinary money judgment, which judgment has become a lien on real property of the debtor, lands subject to the lien must be attached in the manner in which a writ of attachment is levied, under section 542 of the Code of Civil Procedure, the sheriff claiming that course to be proper. It is averred that the sheriff demanded “the fees hereinafter specified, which fees were paid the said J ennings under protest.” The fees so specified were for proceedings taken by the officer in accordance with said section 542, and amounted to one hundred and seventeen dollars and forty cents. Then occur the following allegations: “That said defendant demanded of said Hinton the sum of two hundred dollars, in addition to said sums heretofore stated, all of which sums the said Jennings agreed to return to said Hinton if said demand was not legal. .... And plaintiff alleges that all of said charges and sums paid as aforesaid are illegal)” etc. The prayer is for judgment in the sum of three hundred and seventeen dollars and forty cents. The complaint was not verified, and the answer was a general denial. The court made 'findings containing a recital that the parties agreed upon the same as true. These show that the sheriff, in executing the writ, attached numerous parcels of land in the manner alleged by plaintiff, and charged and ivas paid therefor the sum of one hundred and seventeen dollars and sixty-five cents; and for this amount the court rendered judgment in favor of plaintiff. Ho reference is made in the findings to a demand by the sheriff, or payment to him, of anything beyond said sum of one hundred and seventeen dollars and sixty-five cents.
In our opinion, the record discloses no cause of action of which the superior court has original jurisdiction. In order that jurisdiction may be exercised by that court in an action at law for the recovery of money only, "the constitution requires that the demand in suit shall amount to three hundred dollars. (Const., art. 6, sec. 5.) It is well settled that in such actions the amount
Haynes, C., and Searls, C., concurred.