Bellmer v. Blessington

TEMPLE, J.

This action is based upon section 693 of the Code of Civil Procedure, and is against a constable and his

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sureties, to recover the penalty and damages for selling personal property belonging to the plaintiff under a writ of execution, without giving the notice required by law.

It is contended by plaintiff that the execution was void because not dated, but this point will not be further noticed than to say that the action implies, and for its maintenance requires, a valid execution, and the point is therefore, as to plaintiff’s case,

felo de se.

Five days’ notice is required by the statute. The notice was posted on February 20th, and the sale was made, as advertised, on February 25th. If section 12 of the Code of Civil Procedure is applicable to this case, this was five days’ notice. That it is applicable was held in

Misch

v.

Mayhew,

51 Cal. 514. That was an election contest. The code required each party in such contest to give his opponent a written list of the illegal votes he would attempt to prove at least three days before the trial. Defendant served his list on the 7th of December, and the trial commenced on the 10th of the same month. The trial court held that this was not sufficient notice, and excluded the evidence offered. In reversing this ruling this court said: “The language of section 1116 of the Code of Civil Procedure, which fixes the time when the list of alleged illegal votes shall be served, is equivalent to a requirement that the opposite party shall have three days’ notice of the illegal votes-which the-party serving the list expects to prove at the trial. The caséis therefore covered by section 12 of the same code, and a list served on the 7th of December could properly be relied upon- and proven in the trial on the 10th of December.” Section 12 provides that the time in which- any act provided by law is to be done is computed by excluding the first and including-the last, etc. It was contended that this rule only determines, the time for which notice must be posted, and that the sale-could be made only after the full period required for the-notice had expired. For instance, the 20th, on which day the-notice was posted, should be excluded, and to give five full days’ notice after that would require all of the 25th, and the sale could not legally take place until the 26th, for which day the notice should have been given. I think the-point squarely determined by the case cited, which was-affirmed in