159 P. 213 | Cal. Ct. App. | 1916
Appeal from a judgment adverse to the plaintiff, and from an order denying his motion for a new trial.
The defendant was the purchaser at sheriff's sale of certain real property described in plaintiff's complaint. A certificate of sale and a deed were issued to him in due course. The plaintiff was the defendant in the action upon the judgment in which the execution was issued. The first judgment entered in that action was vacated on appeal, and upon a trial being had after reversal, the final judgment was entered, which was one for restitution of premises and costs. The judgment which was set aside on appeal was for restitution and possession of premises, and the sum of $11.75, costs. The final judgment as entered thereafter was for the sum of one hundred dollars damages, and $89.62, costs. Through error the writ of execution in describing the judgment upon which it was issued referred to the date of the first judgment instead of the last, but in all other particulars was regular and conformed to the second judgment, properly stating the amount thereof, etc. No motion was made to set aside the execution because of any irregularity, and the certificate of sale was issued in December, 1908. This action was commenced in October, 1910, the prayer being that the plaintiff have judgment declaring null and void the sheriff's certificate and deed.
It is claimed, first, that the execution sale was void because in the writ the date of the entry of judgment was misstated in that the date given was that of the first judgment which had *577
been set aside, and not of the last and final judgment in the action. If this irregularity rendered the writ entirely void, plaintiff was entitled to relief; otherwise not. If the writ was merely irregular and subject to an amendment, the plaintiff cannot attack it in this way as against the defendant, a purchaser for value. In the case of O'Donnell v. Merguire,
In the same case the court, speaking to the question of a voidable execution as distinguished from a void one, says: "Nor if B, who is bound to know of the variance between the judgment and the execution, does not interpose by motion for its correction, ought he to be allowed to question the title of a purchaser under it — it may be years afterward? He has a remedy by motion to amend, or by action to recover the excess of the levy from the plaintiff in the execution, and the clerk, also; besides, with full knowledge of all defects, he has allowed the sheriff, acting as his agent in the matter, to sell, and the purchaser to buy, without opening his lips, and in all fairness and justice to the latter, he must keep them closed forever" (citing cases). The execution in this case *578
was defective only in that the date of the entry of judgment was misstated; there was an existing valid judgment against the defendant at the time of its issuance, and the amount of that judgment was correctly stated in the writ; there was only one existing judgment and that judgment would appear by an inspection of the record, for the reference as given in the writ referred to and identified the case in which the final judgment had been entered; it was the same case in which the first judgment, entered as of the date mentioned in the execution, had been made and afterward vacated on appeal. InFranklin v. Merida,
As a ground for further objection, it is said that in the certificate of sale the sheriff declared that he had offered the property for the sum of $236.55; that under the provisions of the code regulating the matter of execution sales the sheriff was required to offer the property to the highest bidder at *579 public auction. (Code Civ. Proc., sec. 694.) It is true that the certificate of sale issued by the sheriff did contain an expression such as that described, but upon an examination of the whole document as it is set out by copy in the transcript, we find ample recitals to the effect that the property was sold at public auction in accordance with the statute, and that Winans was the purchaser and highest bidder.
We find no error in the judgment and no sufficient reason why the order denying a new trial should be disturbed.
The judgment and order are affirmed.
Conrey, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 24, 1916.