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1. Record on appeal.- Where a notice of intention to move for a new trial is not filled in time, and the motion is made on the minutes of the court and denied, a statement of the case attempted to be prepared under section 661 of the Code of Civil Procedure can not be used on an appeal taken from the judgment.—Neale v. Morrow, 174 Cal. 49, 161 Pac. 1165.
2. Where the findings of the court, fully supported by the evidence, sustain the judgment, the motion under this section is properly denied.-Sprague Canning Mach. Co. v. Western Ranching Corp., 29 Cal. App. 374, 155 Pac. 1017.
3. Whether a party by first taking an appeal from the judgment deprives himself of his recourse to the remedy herein is raised but not decided.—Sprague Canning Mach. Co. v. Western Ranching Corp., 29 Cal. App. 374, 155 Pac. 1017.
Motion for will not lie when.-After a defendant has moved for a new trial because of the insufficiency of the evidence to sustain the verdict and had his motion overruled, he can not move to set aside the judgment on the same ground.—Treat v. Treat, 170 Cal. 337, 150 Pac. 57.
5. Vacation as to one defendant.If a judgment be given against several defendants who have been sued as joint tortfeasors, the judgment, if found to erroneous as to any one of the defendants, may be vacated as to that one only, and be continued in full force and effect as to the remaining defendants who have not appealed.-Fearon V. Fodera, 169 Cal. 370, Ann. Cas. 1916D 312, 148 Pac. 200.
VACATION OF JUDGMENT. 1-3. Construction of section.
4. Motion for will not lie when. 5. Vacation as to one defendant.
1. Construction of section.-A motion to amend or to change any finding of fact is unauthorized and
not be granted. Neither this nor the following section authorize it. The language of these sections is entirely free from ambiguity and leaves no room for doubt as to what is authorized thereby. 'As applied to a judgment based upon findings of fact made by a trial court, the sections simply authorize a motion to vacate the judgment to make it and the conclusions of law consistent with and supported by the findings of fact, and do not authorize any change in any finding of fact. This section simply authorizes the substitution of the judgment that should have been given as a matter of law upon the findings of fact in a case where the judgment already given is an incorrect conclusion for such findings. The court can not change any finding of fact.-Hole v. Takekawa, 165 Cal. 372, 132 Pac. 445.
MANNER OF GIVING AND ENTERING JUDGMENT.
8 671. Judgment-lien, when it begins and when it expires.
omitted, it may be subsequently entered and,
if justice requires, may be made to take 1. Entry of judgment.-Under our pro
effect nunc pro tunc as of the date when cedure the court pronounces its decision,
it was actually made.-Nolte V. Nolte, 29 which in fact is the oral judgment in the
Cal. App. 126, 154 Pac. 873. case. This judgment is to derive its support from written findings of fact and conclusions of law signed by the court. The min- 8 667. isterial duty of the clerk is to enter
JUDGMENT IN CLAIM AND DELIVERY. judgment in conformity with the decision 1-3. Alternative form of judgment. of the court, evidenced by the signed find
4. Computation of value. ings and conclusions. In the generality of
5. Excessive judgment-Full value is cases, to an intelligent clerk, the conclusions
when. of law will be sufficient guidance for the
1. entry of a correct judgment. But it is emi
Alternative form of judgment.Where nently proper for the court to give to the it appears that the possession of the specific clerk for his direction the form of judgment personal property may be obtained or the which the decision or oral judgment calls property itself can be delivered to the party for.--Takekawa v. Hole, 170 Cal. 323, 149 claiming it, failure to make the judgment in Pac. 593.
the alternative form is not erroneous.2. -Entry nunc pro
tunc, Where Beggs v. Smith, 26 Cal. App. 532, 147 Pac. judgment has been rendered and its entry 585.
2. While a judgment must ordinarily be in the alternative, yet a judgment that is not in the alternative is not void, and whether or not it is even erroneous must depend upon the facts of the particular case. -Keiser v. Levering, 29 Cal. App. 41, 154 Pac. 281.
3. A judgment which after ordering recovery by the plaintiff of the property described therein states “that the plaintiff is entitled to judgment for the sum of twelve thousand five hundred dollars in the event that said pictures are not returned to the plaintiff herein by said defendant," is substantially a judgment in the alternative. -Orchardson v. Christie, 30 Cal. App. 8, 157 c. 47.
Computation of value.-The value of the property, where the judgment is in the alternative, is to be computed as of
the time when demand for delivery was made and not as of the date of the original deposit in an action to recover the possession of certificates of stock and a bond deposited with stockbrokers as collateral security in the buying and selling of stocks on margin. -Hartnett v. Wilson, 31 Cal. App. 678, 161 Pac. 281.
Excessive judgment - Full value when.—Where the plaintiff's right to have possession of the described property is only claimed for the purpose of satisfying his claims for unpaid indebtedness, and where no special damages are alleged or proved, the value of the property to him can not exceed the amount of the indebtedness, and therefore a judgment for the full value in case delivery can not exceed such amount.--Keiser v. Levering, 29 Cal. App. 41, 154 Pac. 281.
whenever proceedings in probate are SO akin to a civil action as to necessitate the "papers," which are declared by this section to constitute the judgment-roll, they may be held to constitute the judgment-roll rei
to in section 661 (repealed).Going v. Guy, 166 Cal. 279, 135 Pac. 1128.
3. The judgment-roll on an appeal from a decree of distribution is the petition for distribution, the opposition thereto, if any written opposition is filed, the counter-petitions filed, if any, or any other papers in the nature of pleadings filed at or before the hearing purporting to set forth the claims of the parties who appeared and claimed distribution, with the answers thereto, also the findings of the court, if any, upon the issue formed, any orders or other papers of like character to those mentioned in tion 670 of the Code of Civil Procedure, and the decree of distribution itself.- Estate of Broome, 169 Cal. 604, 147 Pac. 270.
4. It is axiomatic that papers not properly authenticated as having been used on a hearing resulting in a judgment or order or decree, can not be considered on appeal, saving those papers and those alone which may be considered as a part of the judgment-roll.—Estate of Broome, 169 Cal. 604, 147 Pac. 270.
5. The original answer is an essential part of the judgment-roll, and where the same is omitted from the judgment-roll presented on the appeal from the judgment and order denying new trial, and the answer which the court refused to allow substituted, the judgment-roll is fatally defective. --Lincoln County Bank v. Fetterman, 170 Cal. 357, 149 Pac. 811.
6. Upon a direct attack by appeal the judgment can not be held to be void merely because the affidavits upon which the order for publication of summons was granted do not appear in the judgment-roll.-William Wilson Co. v. Trainor, 27 Cal. App. 43, 148 Pac. 954.
7. A direction of the court that plaintiff's attorney prepare findings and judgment is no part of the judgment-roll, and hence an inspection of it would not disclose that such direction was given.-California Cent. Creamery Co. v. Crescent City L. W. & P. Co., 30 Cal. App. 619, 159 Pac. 209.
8. Exhibits and orders printed in the transcript but having no place therein as not being part of the judgment-roll are improperly in the record when there is no bill of exceptions, and the appellate court will not notice points attempted to be made as to them.-Brown v. Canty, 31 Cal. App. 183, 159 Pac. 1056.
1. Judgment-roll - What constitutes. The only papers which an appellate court can consider on an appeal from a decree of distribution, where the bill of exceptions or transcript has not been authenticated by the trial judge, are the papers which would be the equivalent of the judgment-roll in an ordinary civil action, that is, the petition for distribution, the opposition thereto, if any, the counter-petitions filed, or any other papers in the nature of pleadings purporting to set forth claims of parties who appeared and claimed distribution, with the answers thereto, also the findings of the court, if any, or any orders or other papers of like character mentioned in this section.-Estate of Gamble, 166 Cal. 253, 135 Pac. 970.
2. There is no "judgment-roll,” strictly speaking, in proceedings in probate, but
8 671. JUDGMENT-LIEN, WHEN IT BEGINS AND WHEN IT EXPIRES. Immediately after filing the judgment roll, the clerk must make the proper entries of the judgment under appropriate heads, in the docket kept by him, noting thereon the hour and minute of the day of such entry; and from the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards acquire, until the lien ceases. The lien continues for five years unless the enforcement of the judgment be stayed on appeal by the execution of a sufficient undertaking as provided in this code, in which case the lien of the judgment and any lien by virtue of an attachment that has been issued and levied in the action ceases.
History: Enacted March 11, 1872, a re-enactment of $ 204 of Practice Act; amended March 24, 1874, Code Amdts. 1873-4, p. 320; March 9, 1895, Stats, and Amdts. 1895, p. 37; April 19, 1917, Stats. and Amdts. 1917, p. 141. in effect July 27, 1917.
8 671a. FILING JUDGMENTS OF UNITED STATES COURTS. scripts of judgments and copies of judgments rendered in the district or other courts of the United States within the State of California, when certified by the clerk of said courts under the seal thereof, may be filed and recorded in the office of the county clerk of any county in this state, and when so filed the clerk shall immediately enter the same in the judgment docket in the same manner as judgments rendered in the superior court are entered and such transcripts of judgments and copies of judgments, when so certified, may be filed for record in the office of any county recorder of this state and when so filed for record the county recorder shall record and index the same in the same manner as transcripts of judgments and copies of judgments of the courts of this state are recorded and indexed; and from such recording the judgment becomes a lien upon all the real property of the judgment debtor not exempt from execution in such county, owned by him at the time, or which he may afterward, and before the lien expires, acquire.
History: Enactment approved April 19, 1917, Stats. and Amdts. 1917, p. 142. In effect July 27, 1917.
1. Return of execution-Presumption as to.-Where it can not be determined from affidavits in supplementary proceedings when an execution was returned, if any presumption is to be applied it will be presumed that the execution was returned by the officer within sixty days after receipt by him.-People ex rel. Dorris v. McKamy, 28 Cal. App. 196, 151 Pac. 743.
EXEMPTIONS FROM EXECUTION.
of law office.
1. Construction - Subdivision 4 - Furniture of law office.—Where the trial court found on conflicting affidavits that the personal property seized was the professional and necessary law office furniture and that the debtor was using it in the actual practice of his profession the appellate court is not authorized to review the evidence and make а different finding. — Development Building Co. v. Woodruff, 31 Cal. App. 732, 161 Pac. 754.
2. -Subdivision R-Auto truck.-An auto truck which the owner does not habitually use in earning his living is not exempt under subdivision 6 of section 690 of the
1. Enforcement of money judgment-Annulment. - A sale made upon execution issued upon a judgment is not subject to annulment upon the ground that notice of the making and filing of findings and of the rendition and entry of the judgment was not served upon the adverse party prior to the issuance of the execution and sale of the property.-Foster v. Young, 172 Cal. 317, 156 Pac. 476.
Code of Civil Procedure.-In re Schum, 232 without redress.-Buxton v. Pennsylvania Fed. 414.
Lumber Co., 221 Fed. 718. 3. -Subdivision 10—Salary-Where the judgment debtor claimed exemption under 8702. subdivision 10 it was error for the trial
1. Redemption - Construction of section. judge to deny a motion for the release of Where incumbered realty is conveyed to a the money on the ground that the salary trustee to sell and apply the proceeds to the was not necessary for the purposes stated, payment of the debt and expenses and then as it appeared that the debtor had drawn to apportion the residue among three differfifteen hundred dollars from the bank, ent creditors, and the mortgage is forewhich had been wholly unaccounted for, closed and the certificate of title is obwhere the uncontradicted testimony of the tained by assignee of two of the three debtor showed that the money had all been
beneficiaries, the third can not have the paid out by him for election expenses and trust restored after expiration of the time litigation.--People (ex rel. Dorris) v. Mc
for redemption by offering to pay the full Kamy, 28 Cal. App. 196, 151 Pac. 743.
redemption price and the amount due the
others. The right of redemption open to 8 700.
such beneficiaries was not an equitable 1. Execution sale-Title acquired by pur
right to be exercised at their pleasure, but chaser.—The purchaser at an execution sale
the statutory right declared in this section. takes his title subject to such liens, ease
McNutt v. Nuevo Land Co., 167 Cal. 459, 140 ments and equities as it was subject to in
Pac. 6. the hands of the defendant in execution, unless he can show that he is a purchaser $ 703. in good faith, and without any notice, actual 1. Redemption by judgment creditor, etc. or constructive, of the existence of such -Construction of section. It is only where lien, easement or equity.-Koch v. Wilcoxon, the judgment debtor redeems that the ef30 Cal. App. 517, 158 Pac. 1048.
fect of the sale is terminated and he is 2. A purchaser at an execution sale, in restored to his estate.-McNutt v. Nuevo order to maintain his title as against the Land Co., 167 Cal. 459, 140 Pac. 6. claim of a third person, must have purchased without any notice that the title
8 710. was other than the record showed it to be.
MONEYS DUE JUDGMENT DEBTORKoch v. Wilcoxon, 30 Cal. App. 517, 158 Pac,
COLLECTION OF. 1048. 3. Notice which will charge the pur
1. As to purpose of section. chaser necessarily is any legal notice which
2. Construction of section. he may have received of the defect in the
3. Constitutionality of section. title prior to the occurrence of the sale
4. Filing of transcript, effect of. and the payment of his money.-Koch v.
5. Priority of claims. Wilcoxon, 30 Cal. App. 517, 158 Pac. 1048.
1. As to, purpose of section.—The pur4. If the judgment debtor has a good pose of enacting the statute was to afford title, the purchaser gets it; if a partial a means whereby money due from a munititle, he gets that; or if no title, he gets cipality to the debtor of another could be nothing. He assumes the risk of defects reached by the creditor and subjected to in the debtor's title; and this is true whether the payment of his claim. This section he purchases with or without notice.-Bux- must be liberally construed with a view to ton V. Pennsylvania Lumber Co., 221 Fed. effect its object. Where the provisions of 718.
the section have been complied with a writ 5. A purchaser is bound to examine, or of mandate commanding the auditor to cause to be examined, all the documents of draw a warrant upon the city treasurer will record constituting a part of the chain of lie. It makes no difference that the munititle of those from whom he buys. The rule cipal charter requires all warrants to be applies with special force to purchasers at signed by the mayor, nor that the fund out execution sales, and to judgments, and to of which the plaintiff should have been paid the proceedings under which such sales are is exhausted, and hence the writ unavailing made. of such equities and irregularities if issued.-Ott Hardware Company v. Davis, as these disclose, the purchaser must be 165 Cal. 795, 134 Pac. 973. deemed to have had notice.-Buxton v. Penn
2. Construction of section. The filing sylvania Lumber Co., 221 Fed. 718.
with the city auditor of the transcript of 6. A purchaser from a purchaser under a judgment imposed upon that officer the mindecree void for want of jurisdiction is not isterial duty of drawing a warrant. Inasa bona fide purchaser without notice. He much as prior to the adoption of this is bound to know the want of jurisdiction. section municipal corporations were not He is bound to know defects in papers show- subject to any of the statutory provisions ing his claim of title.-Buxton v. Pennsyl- relating to attachment or garnishment this vania Lumber Co., 221 Fed. 718.
added enactment must be given the effect 7. Parties attempting to enforce a void only of prescribing a ministerial duty for judgment may be responsible as trespassers. the non-performance of which no liability The purchaser at a sale by virtue of its can accrue against the municipality. (Disauthority finds himself without title and senting opinion of Angellotti, J., with whom 3. The examination of the judgment debtor under this and the following section is the same; it covers the same field and has the same purpose, namely, that of haying disclosed by an examination of the debtor some property not exempt from execution which the judgment creditor may have subjected to sale under his execution. -People ex rel. Dorris v. McKamy, 28 Cal. App. 196, 151 Pac. 743.
1. Supplementary proceedings-Compelling debtor to appear.-Where the execution has been issued and not returned there must be an affidavit showing that the execution is unsatisfied and that the debtor has property which he refuses to apply toward satisfaction of the judgment.--People ex rel. Dorris V. McKamy, 28 Cal. App. 196, 151 Pac. 743.
See, also, annotation to preceding section.
Henshaw concurred.)-Ott Hardware Co. v. Davis, 165 Cal. 795, 134 Pac. 973.
3. Constitutionality of section. Prior to the enactment of this section the salary of a public officer was not subject to attachment or garnishment. The enactment of this section was a valid exercise of legislative power.—Trow v. Moody, 27 Cal. App. 403, 150 Pac. 71.
Filing transcript, effect of.-The filing of a transcript of a judgment against a city official with the auditor as provided by section 710 of the Code of Civil Procedure has the effect of impounding whatever money is owing to the official at the time the transcript is filed, and the same has priority over an instrument filed on the same day but before the filing of the transcript wherein such official made a purported assignment of the portion of the monthly salary which he had then earned to the person filing the instrument.—Trow v. Moody, 27 Cal. App. 403, 150 Pac. 77.
5. Priority of claims.-The claim of one who garnishes a debt due to his judgment debtor is superior to the claims of laborers and materialmen under section 1184, who give notice after the garnishment has been made.- Miles v. Ryan, 172 Cal. 205, 157 Pac. 5.
1. Supplementary proceeding Examination of debtor.-An order subjecting a judgment debtor to a second examination upon proceedings supplemental to execution
not be had without disclosing some new facts. Such an order is unwarranted in a case where the second affidavit is identical with the first, except that it sets forth that the defendant withdrew a certain amount of money from a bank, but does not allege that the affiant did not at the time of the first examination have full knowledge of the facts concerning the withdrawal of the money.-People ex rel. Dorris v. McKamy, 28 Cal. App. 196, 151 Pac. 743.
2. An order made upon such an examination that the salary of the debtor was not necessary for the support of his family, because he had not satisfactorily accounted for certain money which he had months before drawn from a bank, is unauthorized, where his testimony is uncontradicted that he spent such bank money for election expenses and litigation. People ex rel. Dorris v. McKamy, 28 Cal. App. 196, 151 Pac. 743.
1. Supplementary proceedings Construction of section.-This chapter relates only to proceedings supplementary to execution and it is not necessary that the provisions should be resorted to before beginning action against who has been garnisheed under sections 543 and 544.Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244.
2. There need be other showing of facts than that of the execution being returned unsatisfied, because the return of the execution itself unsatisfied presupposes that search for property of the debtor has been fruitless.--People ex rel. Dorris v. McKamy, 28 Cal. App. 196, 151 Pac. 743.
4. After an examination has been held under this and the following section and the creditor has been given the privilege of fully examining his debtor as to his property, he can not subject the debtor to a second examination without disclosing to the court some new facts, such as that other facts have become known to the creditor of which he was not apprised at the former examination, or matters of like kind.-People ex rel. Dorris v. McKamy, 28 Cal. App. 196, 151 Pac. 743.
FORECLOSURE SUITS. 1, 2. Construction of section. 3. As to who may be parties plaintiff
Lessor. 4. But one action to recover debt
Waiver. 5, 6. Complaint. 7-9. Determination of conflicting claims.
10. Effect of enforcing mechanics' lien. 11-15. Effect of filing complaint.
16. Form of judgment.
1. Construction of section.-This section, providing that there can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage, is clearly inapplicable to the case where the lessor resorted to the summary action of unlawful detainer for nonpayment of rent against an assignee of the lessee; certainly he did not lose his right to foreclose as against the original lessee, a chattel mortgage given as security for the payment of damages on account of any breach of the lease.-Schehr v. Berkey, 166 Cal. 157, 135 Pac. 41.