Jones v. Toland

TUTTLE, J.,

pro

tem.

This is an action brought to recover the sum of $939.84, which it is alleged was converted by defendant in his capacity as sheriff of Butte County. After trial by the court, judgment was entered against defendant in the amount named. The appeal is prosecuted from the judgment.

[482]

From the undisputed facts it appears that in an action brought in Santa Clara County, entitled “Roberts v. Blanchard”, a judgment was entered on June 18, 1924, against defendant therein, in the sum of $5,117.76. On October 5, 1927, an execution was issued upon said judgment, and sent to defendant herein for service upon M. Ocovich, who was indebted to said Blanchard in an unknown amount. Defendant servéd the writ of execution upon Ocovich on October 7, 1927. No money was collected and the writ was returned unsatisfied. On December 6, 1927, Blanchard obtained judgment against Ocovich in the Superior Court of Butte County, for $939.84. On December 7, 1928, a second execution was issued on the Roberts judgment, and on December 9th, this was served by defendant upon Ocovich, and all money due Blanchard upon said judgment was garnished. On December 7th, Blanchard assigned all his .interest in said judgment to plaintiff. On January 23, 1929, plaintiff served upon defendant a third party claim' to the proceeds of said judgment, which had already been paid into court by Ocovich, and the money delivered to defendant. Defendant refused to pay over to plaintiff the money so collected, and this action was instituted to recover the same.

Section 688 of the Code of Civil Procedure provides, in part, as follows: “Until a levy, property is not affected by the execution; but no levy shall bind any property for a longer period than one year from the date of the issuance of the execution; provided, however, an

alias

execution may be issued upon said judgment, and levied on any property not exempt from execution.”

It is admitted that the first execution against Blanchard was served after the expiration of one year from the date of the issuance thereof. It is plain the legislature intended that after the expiration of one year from the date of issuance, a writ of execution would have no further force or effect.