13 Mont. 432 | Mont. | 1893
On the eighteenth day of November, 1887, the respondent recovered judgment against the appellant, in the district court in and for the county of Custer, for the recovery of possession of certain real estate situated in said county, and for one dollar, as damages for the detention thereof.
Within five years of the rendition of such judgment, execution was issued thereon, but was never returned. On the eighth day of August, 1893, five years having elapsed since the rendition of said judgment, the respondent filed its motion in the district court in said county, asking for an order of said court granting leave to respondent to cause an execution to be issued by the clerk of said court to carry into effect said judgment. The motion was filed under and in accordance with section 349, Code of Civil Procedure, which is as follows:
“After the lapse of five years from the entry of judgment, an execution can only be issued by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent, or nonresident, or cannot be found, to make such service, in which case service may be made by publication, or in such other manner as the court shall direct; such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment, or some part thereof, remains unsatisfied and due; but the leave shall not be necessary when the execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part.”
The appellant’s principal ground of exception to the action of the court below appears to be founded upon the contention by appellant that the court could not grant the order for the issuing of an execution, because an execution had issued before the expiration of five years after the rendition of judgment in the case. The statute quoted above provides that “ leave shall not be necessary when execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part.” It seems, therefore, from this statute, that two things are necessary to render leave of court in such cases unnecessary, viz., the issuance of the execution within five years from the rendition of judgment, and the return thereof unsatisfied in whole or in part. As far as the record shows, it is not contended that the execution was ever returned at all. If appellant’s contention means any thing, it means that respondent was entitled to execution without leave of court for its issuance. If so, how can the appellant be injured by the action of the court in ordering it to issue? The appellant appeared and resisted this motion. He tendered no issue as to any fact alleged in the motion of respondent. This was tantamount to a confession of the truth of the facts alleged in said motion, and constituted “satisfactory proof,” other than stated in respondent’s motion and affidavit, that the judgment was unsatisfied and due.
We are of the opinion that the errors complained of by the appellant are purely technical, and without merit.
The order of the court below is affirmed.
Affirmed.