Weldon v. Rogers

MELVIN, J. This is an appeal from an order of the superior court of Los Angeles County made and filed on the eighth day of March, 1909, requiring the sheriff of that county to sell the real and personal property upon which levy had been made under and pursuant to a writ of execution issued on the tenth day of April, 1905. Defendant also appeals from that part of the order which authorized the sheriff to withdraw the execution from the files of the court for the purposes stated in the order. The original execution in this case was issued on the date last mentioned under the provisions of section 685 of the Code of Civil Procedure which had been amended during the first five years of the life of the judgment. Under this execution levy was made upon certain real and personal property of the defendant, and then an appeal was taken from an order refusing to set aside the order enforcing the judgment. *412 An undertaking on appeal was given, appellant claiming and respondent denying that this bond was potent to stay the execution. In order that this question might be authoritatively determined, defendant, on July 18, 1905, gave notice of motion for a writ of supersedeas. Pending the hearing thereon, all proceedings were stayed by order of this court from September 14, 1905, to October 16th of the same year when the motion for the writ of supersedeas was denied. The sheriff, however, without any suggestion from the respondent had returned the writ showing the levy upon certain property. The date of this return was"August 11, 1905. This is the writ contemplated in the order from which the present appeal is taken. Subsequent to the denial by this court of the writ of supersedeas the defendant filed an undertaking in double the amount of the judgment conditioned that if the order appealed from or any part thereof should be affirmed, or the appeal dismissed, appellant would pay to respondent the amount involved. On July 23, 1907, this court affirmed the order of April 10, 1905, enforcing the judgment. (Weldon v. Rogers, 151 Cal. 432, [90 Pac. 1062].) Supposing that the undertaking in double the amount of the judgment had operated as a stay, respondent had not directed anything to be done by the sheriff under the original levy. Instead, a judgment on the bond was entered against the sureties and the appellant, and execution thereon was issued. On appeal this judgment was held void with respect to defendant because it was entered ex parte as to him, and this court also determined that, under section 942 of the Code of Civil Procedure, the bond did not operate as a stay, and that, therefore, neither the sureties nor the appellant were liable. (Weldon v. Rogers, 154 Cal. 632, [98 Pac. 1070].) On February 23, 1909, plaintiff gave notice of motion for an order directing the clerk to issue a writ of venditioni ex-ponas, or an order commanding the sheriff to sell the property upon which levy had been made under the original writ, and, as we have seen, this appeal is from the order granting that motion. Appellant’s first contention is that there never was any valid levy on his personal property, owing to the fact that the *413 sheriff’s return shows that he transposed the notices of attachment so that the cashier of the Pacific Savings Bank was notified of a levy on the stock of defendant in the Ralph Rogers Company, while the secretary of the last-named corporation was apprised of a' similar attachment on defendant’s stock in the Pacific Savings Bank. Blood v. Light, 38 Cal. 649, [99 Am. Dec. 441], is cited as authority to the effect that such mistake is fatal to the validity of the levy. That ease, however, is authority against appellant’s contention, for it is there held, as to the sheriff, “that his power to sell comes from the judgment and execution, and is not to be measured by his proceedings under the writ; . . . that the performance of the acts described in the statute as a levying of the execution is material only in reference to the intervening rights of third persons, or persons who are not parties to the writ; that it is, undoubtedly, the duty of the officer to proceed strictly according to the statute, and if he does not do so, the sale may be set aside, upon motion, or he may be made to respond in damages to any one who has been injured by his neglect; but it would be gross injustice to hold that by proof of such neglect, made, perhaps, years after the sale, the purchasers’ title shall be defeated.” It has been frequently held that the title of the purchaser at sheriff’s sale does not depend on the return to the writ. Hibbard v. Smith, 67 Cal. 564, [56 Am. Rep. 726, 4 Pac. 473, 8 Pac. 46]; McFall v. Buckeye Grangers’ Warehouse Assoc., 122 Cal. 471, [68 Am. St. Rep. 47, 55 Pac. 253].) It is therefore clear that the matter of the correctness of the sheriff’s return is one collateral to this appeal. The next and principal point made by the appellant is that the levy of April 10, 1905, under the writ of execution of that date, was abandoned and could not be revived thereafter. The only authority cited in this behalf is Freeman on Executions, section 271, where it is said, among other things, that “the only proper object of a levy is to compel satisfaction of the writ out of the property seized; and if the plaintiff, by his long delay in following his levy by a sale, or by directions to return the writ unsatisfied, or by any other course of action, indicates that his employment of the writ is not to coerce the prompt payment of his debt, then the levy is abandoned. When property levied upon is not sold before the return day, the *414 proper writ to enforce a sale thereof is a venditioni exponas; while the proper writ to authorize a new levy is an alias fieri facias. Hence, the suing out of the latter instead of the former writ has sometimes been held to be conclusive, and sometimes to be prima facie evidence that the plaintiff had abandoned his levy.” We are asked to hold here that the execution of January 14, 1908, constituted practically an alias writ, and that whether we consider the issuance of such writ as conclusive or prima facie evidence of abandonment, the order reviewed in this appeal, based, as it was, upon the records alone, is void because made without jurisdiction. We fail to see, however, how the later execution, purporting to be based upon the undertaking on appeal, must be taken as an alias to the execution on the judgment; or how the mistaken resort of respondent to that void process was evidence of an abandonment of the original levy. Freeman, in the very section cited by appellant, observes that “the issue of an alias or second execution, while a levy on a prior writ remains undisposed of, is an irregularity which might very properly be corrected by the vacation of the second writ. It indicates misguided zeal in attempting to obtain satisfaction rather more than a desire to permit the first writ to become dormant, or to abandon any advantage gained by it. Unless other circumstances tend to establish the abandonment of a levy, we do not understand how it can be inferred merely from the mistaken and irregular issue of an alias writ. Nor is an abandonment of a regular and adequate levy inferable from a subsequent irregular levy.” While we do not question the fact that respondent at one time mistook her remedy and- that the pursuit of appellant’s property under the original execution was postponed on account of the appeal disposed of by the decision in the 154th volume of the California Reports, [98 Pac.], we do not see that her course of action indicated an intention to forego any advantage which she may have theretofore obtained by reason of the existence of the writ issued in 1905. That the issuance of a second writ is not necessarily an abandonment of the first one, has been held in Dunham v. Bentley, 103 Iowa, 140, [72 N. W. 437]; Bouton v. Lord, & Hatheway, 10 Ohio St. 458; Mason v. Hull, 55 Ohio St. 272, [45 N. E. 632]; West v. St. Johns, 63 Iowa, 292, [19 N. W. 238]; Menge v. Wiley, 100 Pa. *415 St. 619. Nor does mere delay in making the sale operate as an abandonment of the levy, as was said by this court in Southern California Lumber Co. v. Ocean Beach Hotel Co., 94 Cal. 224, [28 Am. St. Rep. 115, 29 Pac. 629], speaking of the validity of a sale by the sheriff after the return day of the writ: “Having the right to subject the property to a sale for the satisfaction of the judgment, the time within which it may be done is but directory, and under the control of the court.” The court did not err in ordering a sale for the full amount of the judgment. Although under the void execution of January 14, 1908, there was, according to the return thereon, a sale made by the sheriff of Orange County, the purchaser under that writ was entitled to a return of his money, and there could properly be no credit upon the original judgment by reason of such sale. The withdrawal of the writ from the files for the sheriff’s use was proper, the court having complete authority over its records and having power also to pursue any suitable method for effectuating its judgments and orders, which may appear most conformable to the spirit of the code. (Code Civ. Proc., sec. 187.) Appellant is of the opinion that as far as the personal property is concerned, any sale thereof should have been made by the sheriff making the levy and not by his successor in office. In this behalf he cites section 62 of Freeman on Executions, 3d ed. Although the general rule in the absence of statutory mandate to the contrary was that the officer who made the levy under a writ of execution on personal property must complete the sale, we have in this state section 4171 of the Political Code, which is but a re-enactment of a law that has existed in California since 1883. (See sec. 107 of the County Government Act; Stats. 1883, page 322.) This section provides that “when any process remains with the sheriff unexecuted, in whole or in part, at the time of his death, resignation of office, or at the expiration of his term of office, said process shall be executed by his successor or successors in office.” Appellant would have us make the distinction that the rule above announced does not apply to process which did not remain with the sheriff unexecuted, but which, before his term expired, had been returned. The very order of the *416 court, however, withdrawing the writ from the files for the ■sheriff’s use, was in effect a finding that the process was returned without proper authority, and that, therefore, the 'writ had, in contemplation of law, remained with the sheriff "unexecuted. The order from which this appeal is taken is affirmed. Lorigan, J., and Henshaw, J., concurred.