Morris v. Winans

JAMES, J.

Appeal from a judgment adverse to the plaintiff, and from an order denying his motion for a new trial.

The defendant was the purchaser at sheriff’s sale of certain real property described in plaintiff’s complaint. A certificate of sale and a deed were issued to him in due course. The plaintiff was the defendant in the action upon the judgment in which the execution was issued. The first judgment entered in that action was vacated on appeal, and upon a trial being had after' reversal, the final judgment was entered, which was one for restitution of premises and costs. The judgment which was set aside on appeal was for restitution and possession of premises, and the sum of $11.75, costs. The final judgment as entered thereafter was for the sum of one hundred dollars damages, and $89.62, costs. Through error the writ of execution in describing the judgment upon which it was issued referred to the date of the first judgment instead of the last, but in all other particulars was regular and eon- ■ formed to the second judgment, properly stating the amount thereof, etc. No motion was made to set aside the execution because of any irregularity, and the certificate of sale was issued in December, 1908. This action was commenced in October, 1910, the prayer being that the plaintiff have judgment declaring null and void the sheriff’s certificate and deed.

It is claimed, first, that the execution sale was void because in the writ the date of the entry of judgment was misstated in that the date given was that of the first judgment which had

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been set aside, and not of the last and final judgment in the action. If this irregularity rendered the writ entirely void, plaintiff was entitled to relief; otherwise not. If the writ was merely irregular and subject to an amendment, the plaintiff cannot attack it in this way as against the defendant, a purchaser for value. In the case of

O’Donnell

v.

Merguire,

131 Cal. 527, [82 Am. St. Rep. 389, 63 Pac. 84], in considering the power of a court to amend writs, it is said: ‘ ‘ The power of courts to amend writs issuing from them, when defective or irregular, has long been exercised, and in modern times with increasing frequency; nor is it easy to prescribe definite limits to the power (1 Freeman on Executions, see. 63); and it is also settled that, if the writ be amendable, it will be accorded the same effect with reference to acts done in execution of it, as if it had been amended. (1 Freeman on Executions, sec. 71b;