§ 661.

1. Record on appeal.-Where a notice of intention to move for a new trial is not filed 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.

§ 663.

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 can 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.

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.

4. 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 the judgment on 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 be 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.

§ 663a..

1. Time of making motion.-A motion for a new trial is sufficiently made by the reading to the court of the notice of intention at the time fixed for the hearing of the motion.-Taylor v. Northern Elec. R. Co., 26 Cal. App. 765, 148 Pac. 543.

§ 664.

1. Entry of judgment.-Under our procedure the court pronounces its decision, which in fact is the oral judgment in the case. This judgment is to derive its support from written findings of fact and conclusions of law signed by the court. The ministerial duty of the clerk is to enter a judgment in conformity with the decision of the court, evidenced by the signed findings and conclusions. In the generality of cases, to an intelligent clerk, the conclusions of law will be sufficient guidance for the entry of a correct judgment. But it is eminently proper for the court to give to the clerk for his direction the form of judgment which the decision or oral judgment calls for. Takekawa v. Hole, 170 Cal. 323, 149 Pac. 593.

2. Entry nunc pro tunc. Where a judgment has been rendered and its entry

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 Pac. 547.

4. 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.

5. Excessive judgment - Full value is when.-Where the plaintiff's right to have possession of the described property is only claimed for the purpose of satisfying his claims for an 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.

§ 670.

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.

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 referred 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 section 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.

Code of Civil Procedure.-In re Schum, 232 Fed. 414.

3. -Subdivision 10-Salary.-Where the judgment debtor claimed exemption under subdivision 10 it was error for the trial judge to deny a motion for the release of the money on the ground that the salary was not necessary for the purposes stated, as it appeared that the debtor had drawn fifteen hundred dollars from the bank, which had been wholly unaccounted for, where the uncontradicted testimony of the debtor showed that the money had all been paid out by him for election expenses and litigation.-People (ex rel. Dorris) v. McKamy, 28 Cal. App. 196, 151 Pac. 743.

$ 700.

1. Execution sale-Title acquired by purchaser.—The purchaser at an execution sale takes his title subject to such liens, easements and equities as it was subject to in the hands of the defendant in execution, unless he can show that he is a purchaser in good faith, and without any notice, actual or constructive, of the existence of such lien, easement or equity.-Koch v. Wilcoxon, 30 Cal. App. 517, 158 Pac. 1048.

2. A purchaser at an execution sale, in order to maintain his title as against the claim of a third person, must have purchased without any notice that the title was other than the record showed it to be.Koch v. Wilcoxon, 30 Cal. App. 517, 158 Pac. 1048.

3. Notice which will charge the purchaser necessarily is any legal notice which he may have received of the defect in the title prior to the occurrence of the sale and the payment of his money.-Koch v. Wilcoxon, 30 Cal. App. 517, 158 Pac. 1048.

4. If the judgment debtor has a good title, the purchaser gets it; if a partial title, he gets that; or if no title, he gets nothing. He assumes the risk of defects in the debtor's title; and this is true whether he purchases with or without notice.-Buxton v. Pennsylvania Lumber Co., 221 Fed. 718.

5. A purchaser is bound to examine, or cause to be examined, all the documents of record constituting a part of the chain of title of those from whom he buys. The rule applies with special force to purchasers at execution sales, and to judgments, and to the proceedings under which such sales are made. Of such equities and irregularities as these disclose, the purchaser must be deemed to have had notice.-Buxton v. Pennsylvania Lumber Co., 221 Fed. 718.

6. A purchaser from a purchaser under a decree void for want of jurisdiction is not a bona fide purchaser without notice. He is bound to know the want of jurisdiction. He is bound to know defects in papers showing his claim of title.-Buxton v. Pennsylvania Lumber Co., 221 Fed. 718.

7. Parties attempting to enforce a void judgment may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and

without redress.-Buxton v. Pennsylvania Lumber Co., 221 Fed. 718.

$ 702.

1. Redemption - · Construction of section. Where incumbered realty is conveyed to a trustee to sell and apply the proceeds to the payment of the debt and expenses and then to apportion the residue among three different creditors, and the mortgage is foreclosed and the certificate of title is obtained by assignee of two of the three beneficiaries, the third can not have the trust restored after expiration of the time for redemption by offering to pay the full redemption price and the amount due the others. The right of redemption open to such beneficiaries was not an equitable right to be exercised at their pleasure, but the statutory right declared in this section. McNutt v. Nuevo Land Co., 167 Cal. 459, 140 Pac. 6.

§ 703.

1. Redemption by judgment creditor, etc. -Construction of section.-It is only where the judgment debtor redeems that the effect of the sale is terminated and he is restored to his estate.-McNutt v. Nuevo Land Co., 167 Cal. 459, 140 Pac. 6.

§ 710.

MONEYS DUE JUDGMENT DEBTOR

COLLECTION OF.

1. As to purpose of section. 2. Construction of section. 3. Constitutionality of section. 4. Filing of transcript, effect of. 5. Priority of claims.

The pur

1. As to purpose of section. pose of enacting the statute was to afford a means whereby money due from a municipality to the debtor of another could be reached by the creditor and subjected to the payment of his claim. This section must be liberally construed with a view to effect its object. Where the provisions of the section have been complied with a writ of mandate commanding the auditor to draw a warrant upon the city treasurer will lie. It makes no difference that the municipal charter requires all warrants to be signed by the mayor, nor that the fund out of which the plaintiff should have been paid is exhausted, and hence the writ unavailing if issued. Ott Hardware Company v. Davis, 165 Cal. 795, 134 Pac. 973.

2. Construction of section. The filing with the city auditor of the transcript of judgment imposed upon that officer the ministerial duty of drawing a warrant. Inasmuch as prior to the adoption of this section municipal corporations were not subject to any of the statutory provisions relating to attachment or garnishment this added enactment must be given the effect only of prescribing a ministerial duty for the non-performance of which no liability can accrue against the municipality. (Dissenting opinion of Angellotti, J., with whom

4.

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.

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 one who has been garnisheed under sections 543 and 544.Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244.

2. There need be no 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.

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 having 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.

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.

§ 715.

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.

§ 717.

1. Supplementary proceedings-Examination of debtor.-An order subjecting a judgment debtor to a second examination upon proceedings supplemental to execution can 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.

§ 726.

FORECLOSURE SUITS.

1, 2. Construction of section.

3. As to who may be parties plaintiffLessor.

4. But one action to recover debtWaiver.

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. 17-19. New or additional security takenEffect of.

20, 21. Personal action for deficiency.

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.