Leviston v. Swan

33 Cal. 480 | Cal. | 1867

By the Court, Sandebson, J.:

The judgment is in conformity with the old chancery practice rather than the system which prevails in this State. All that portion relating to the report of the Sheriff—the confirmation of the sale—who may purchase—the rights of the purchaser pending the time allowed for redemption— the conveyance of the mortgaged premises in case no redemption shall have been made—the delivery of the possession to the purchaser after he has obtained his deed—■ the mode and place of sale and the docketing of the judgment for any deficiency that may be found to exist after the sale, is not required under our system of practice, and therefore serves no purpose except to incumber the record. Of what the judgment in a foreclosure case shall consist is declared in the two hundred and forty-sixth section of the Practice Act. All that it need or should contain, is a statement of the amount due to the plaintiff—a designation of the defendants who are personally liable for the payment of the debt, and a direction that the mortgaged premises, or so much thereof as may be necessary, be sold according to law and the proceeds applied to the payment of the expenses of the sale, the costs of the action, and the debt. "Hothing further is required. All else is ministerial and is expressly regulated by the statute, which is not made clearer or more binding by being copied into the judgment. There is, under our system, no Master in Chancery—no Master’s report— and no confirmation of the sale by the Court. ' That mode of procedure is wholly foreign to our system. Under our system, the Sheriff is furnished with a certified copy of the judgment. Armed with this process, he proceeds to sell the mortgaged property in the mode and manner, and at the place designated in the Practice Act for the sale of real estate under judicial process, and makes a return of his proceedings as in the case of an execution upon a money judgment. If it appears from his return that the amount due the plaintiff has not been fully paid by the sale, the Clerk then dockets the judgment, for the balance due, against those defendants named in the judgment as being personally liable for the payment of the debt, without any order from the Court.

The judgment in this case, as first entered, was defective in not designating the defendants who were personally liable for the debt; but inasmuch as the record shows who - they were, the Court had the power to amend the judgment at any time by adding a clause designating the defendants who were personally liable.

The more regular motion would have been to amend the judgment by supplying the omission which was apparent upon the face of the record, hut we consider the course pursued as amounting substantially to the same thing.

Order affirmed.

Mr. Justice Shaeter did not express an opinion.