McMann v. Superior Court

Temple, J. J. — This is an application for a writ of review, in which it is sought to have an order vacated which required the petitioner, as sheriff, to refund certain moneys collected upon an execution, which, it is claimed, was void for the reason that the judgment upon which it was issued had ceased to be operative, because it had been entered more than five years. The execution was for costs which accrued in the supreme court. The judgment was rendered here May 3, 1882. The remittitur was issued May 6, 1882, and was filed in the court below May 9,1882. The cost bill was filed May 10, 1882. Execution was issued May 10, 1887.

The sections of the code bearing upon the subject are section 958, Code of Civil Procedure, which provides [107]that when the appeal is from a judgment, the clerk, on receipt of the remittitur, must attach it to the judgment roll, and enter a minute of the judgment of the supreme court on the docket against the original entry; and section 1034, Code of Civil Procedure, which provides that the party to whom costs are awarded must file his cost bill within thirty days after the remittitur is filed, and thereafter he may have an execution therefor as upon a judgment. Execution may be issued upon a judgment at any time within five years after its rendition; and it is contended that the language, “ he may have an execution therefor as upon a judgment,” not only directs the mode and manner of issuing execution, but also makes applicable the limitation as to time. It is obvious, however, that the sole purpose of the language used was to give the party entitled to the costs an execution therefor.

The case of Kerns v. Graves, 26 Cal. 156, is analogous to the case at bar. A judgment had been obtained before a justice of the peace, and a transcript filed in the office of the county clerk. The statutes provided, as in section 899, Code Civil Procedure, that execution might be issued by the county elerk, “ as upon judgments recovered in the higher courts.” This court held that execution could only issue within five years after the judgment rendered by the justice of the peace, and that the execution was still upon and by virtue of the judgment rendered by the justice.

In making the entries required by section 958, the clerk of the superior court acts by authority of this court. No action is required on the part of the superior court to authorize the entries or the issuance of the execution. The execution issues pursuant to the judgment rendered in this court, which is thus docketed and made the judgment of the superior court. It becomes the judgment in that court as soon as the remittitur is filed and the entries made. This view was taken in the case