74 Cal. 106 | Cal. | 1887
J. — This is an application for a writ of review, in which it is sought to have an order vacated which required the petitioner, as sheriff, to refund certain moneys collected upon an execution, which, it is claimed, was void for the reason that the judgment upon which it was issued had ceased to be operative, because it had been entered more than five years. The execution was for costs which accrued in the supreme court. The judgment was rendered here May 3, 1882. The remittitur was issued May 6, 1882, and was filed in the court below May 9,1882. The cost bill was filed May 10, 1882. Execution was issued May 10, 1887.
The sections of the code bearing upon the subject are section 958, Code of Civil Procedure, which provides
The case of Kerns v. Graves, 26 Cal. 156, is analogous to the case at bar. A judgment had been obtained before a justice of the peace, and a transcript filed in the office of the county clerk. The statutes provided, as in section 899, Code Civil Procedure, that execution might be issued by the county elerk, “ as upon judgments recovered in the higher courts.” This court held that execution could only issue within five years after the judgment rendered by the justice of the peace, and that the execution was still upon and by virtue of the judgment rendered by the justice.
In making the entries required by section 958, the clerk of the superior court acts by authority of this court. No action is required on the part of the superior court to authorize the entries or the issuance of the execution. The execution issues pursuant to the judgment rendered in this court, which is thus docketed and made the judgment of the superior court. It becomes the judgment in that court as soon as the remittitur is filed and the entries made. This view was taken in the case
The statute commencing to run from the entry made in the docket, there was no authority for issuing the execution, and the court did not err in recalling it. (White v. Clark, 8 Cal. 513.) Nor do we think the power of the court to order the sheriff to refund the money can be doubted. He was acting as an officer of the court, and under color of its process. Thus acting, he demanded and received moneys illegally. The money was paid to him in his official capacity as an officer of the court, and because of the process improperly issued. Certainly the court must have the power to control the conduct of its officers when acting under color of its authority or of its process. (Code Civ. Proc., sec. 1286.) We think the writ should be denied.
So ordered.
Searls, C. J., McFarland, J., Paterson, J., McKinstry, J., Thornton, J., and Sharpstein, J., concurred.