Dyke v. Bank of Orange

Vanclief, C. — The plaintiffs are husband and wife, and own a tract of land in Orange County, upon which they reside, and which they claim as a homestead.

On October 30, 1888, the defendant Bank of Orange obtained a judgment against F. M. Dyke and others for the sum of $394.82 debt, and $34.40 costs. On July 8, 1890, an execution was issued on this judgment, and placed in the hands of the defendant Harris, who, as sheriff, on July 9, 1890, levied the same on a part of plaintiffs’ homestead, and advertised it for sale.

[399]This action was brought to enjoin the sale. The plaintiffs prevailed, and the defendants bring this appeal from the final decree upon the judgment roll, including a bill of exceptions.

The plaintiffs’ declaration of homestead was recorded on the twelfth day of August, 1889, more than nine months after the rendition of the judgment against F. M. Dyke, on which the execution was issued; and the only material question presented for decision is, Was the judgment properly docketed so as to become a lien on plaintiffs’ land before the recording of this homestead?

There is no question that the judgment was properly docketed on October 31, 1888, in all respects, except as to the requisite statement of the “ amount ” of the judgment, which the court found to have been stated in the third column of the docket, under the heading “Amount of judgment,” as follows, and not otherwise: —

As conclusions of law, the court found that this was not a sufficient statement of the amount of the judgment; that the “ judgment did not become and was not a lien upon the homestead premises ” before the declaration of homestead was recorded; and that the plaintiffs were entitled to-the relief demanded.

Counsel for appellants contend that the conclusions of law are not supported by the facts found, and I think this point should be sustained.

Section 672 of the Code of Civil Procedure provides: “ If judgment be for the recovery of money or damages, the amount must be stated in the docket under the head [400]