H. Newmark & Co. v. Chapman

By the Coubt : The process under which the mortgaged property was sold was only a copy of the judgment issued and attested by the Clerk. It did not conform to secs. 682 and 684 of the Code of Civil Procedure, as it did not purport to have been issued in the name of the People, nor was it directed to the Sheriff, nor did it direct him to execute the judgment. Process of that kind was regarded [559]as regular in foreclosure cases under the Practice Act, (Heyman v. Babcock, 30 Cal. 367) and it would be so regarded up to the time of the adoption of an amendment to sec. 684 in 1874. By that amendment it was provided that “ when the judgment requires the sale of property, the same may be enforced by a writ reciting such judgment, or the material parts thereof, and directing the proper officer to execute the judgment by mating the sale and applying the proceeds in conformity therewith.”

The process was erroneous; but was it, for the defects above mentioned, void? The judgment itself directed the Sheriff to do all that process, issued in the most formal and regular manner, could have directed him to do. If the process was amendable by supplying the above-mentioned defects, it was not void; for void process cannot be amended; and if it Was amendable, it will be treated, in this proceeding, as having been amended— that is to say, it cannot be attacked collaterally. (Hunt v. Loucks, 38 Cal. 372.) The power to amend process, so as to correct clerical misprisions and supply omissions of matters of form, is almost universally conceded; and in view of the numerous amendments, both of form and of substance, allowed by the Courts, it is difficult to prescribe limits to this salutary power, -in cases where it does not appear that the amendment will injuriously affect the interests of third persons. And, accordingly, amendments have been allowed by which all the defects of the kind of those in the process in this case have been remedied. (See Freeman on Executions, sec. 63 and following, and cases there cited.)

The process, though erroneous, was not void; and as against the defendant, who is the tenant of one of the defendants in the action to foreclose the mortgage, under a lease made after the commencement of that action, the process will be regarded as sufficient authority to the Sheriff to sell and convey the mortgaged premises.

Order affirmed.