Hibberd v. Smith

By the Couet: 1. The judgment in the action of Hibberd v. Chipman and Aughinbaugh was docketed in such a manner as to constitute a lien on the real property of the defendants therein. The statute required that the names of the defendants should be entered in the docket in alphabetical order. (Pr. Act, Sec. 205.) It was evidently intended that the surnames should precede the Christian names, and the omission of the Christian name of the defendant Chipman did not deprive the docket of its useful function of directing [518]the attention of those interested to the existence of a judgment, and to all its incidents.

2. As against judgment creditors of W. W. Ghipman, his deed to E. S. Ghipman was not delivered until after the Hibberd judgment was docketed.

3. Under the practice in chancery—except in cases of strict foreclosure, when the decree deprived the mortgagor of his right to redeem—the decree of foreclosure operated in rem, and directed a sale of the mortgaged premises. Such decree did not possess the qualities of a judgment in an action at law, on which execution could issue, to be levied on the general property of the mortgagor. But, by section 246 of the Practice Act of 1851, it was provided: “In an action for the foreclosure or satisfaction of a mortgage of real property, etc., the court shall have power by its judgment to direct a sale of the property, or any part of it; the application of the proceeds to the payment of the amount due on the mortgage, etc., with costs, and execution for the balance.”

In entering the judgment in Hepburn v. Chipman, the form was adopted which is provided for in the statute just quoted.

This judgment is substantially like those of Drexel, Sather & Church, and Freaner, as the judgments in those two cases were assumed to be in the original opinion of the Supreme Court in Chapin v. Broder (16 Cal. 403). There the court declared (p. 421) the question to be, at what time did the lien of such a judgment attach: when it was docketed, or when a deficiency was ascertained by the return of the sheriff after sale ? After saying that the court had previously held that the statute authorized a personal judgment against the mortgagor, and that in case of such personal judgment its docket would make it a lien, the opinion in Chapin v. Broder proceeds: “It is obvious, however, that nothing but a judgment establishing a definite personal liability can have this effect. A mere contingent provision, referring to no particular amount, and in abeyance until the contingency is determined, is not within the meaning of the statute. It may' become a valid and perfect judg