Southern California Lumber Co. v. Ocean Beach Hotel Co.
Before: Harrison
Synopsis
Foreclosure of Lien — Order of Sale—“Writ”—“Execution” — Sale after Return Day — Construction of Code. — The only process provided for the enforcement of a judgment foreclosing a lien upon specific property is that prescribed by section 684 of the Code of Civil Procedure, requiring a judgment for the sale of property to he enforced by a “writ” reciting the judgment and directing the sale. Such “writ” is not an “execution” within the meaning of section 683, and a sale of the property by the sheriff is not invalidated because made after the return day of the writ.
Id. — Execution — Sale under Levy after Return Day. —A sale by a sheriff under an execution after the return day of the execution is valid if he has made a levy during the lifetime of the writ; and a sale may likewise be made after the return day of a writ issued under an ordee of sale, where no levy is required.
Id. — Directory Provision as to Time — Control oe Court — Setting aside Sale. — The time within which a sale is directed to be made to satisfy a judgment ordering a sale upon foreclosure of a lien is but directory, and under the control of the court; and the sale should not be set aside merely because it was not made before the return day of the writ.
Harrison, J. On December 1,1888, the plaintiff obtained a judgment against the defendant, foreclosing a material-man’s lien upon a block of land in the city of San Diego, and directing a sale of the property, and the application of the proceeds to the payment of the amounts adjudged to be due.
On October 8, 1889, a writ for the enforcement of this judgment was issued and placed in the hands of the sheriff of the county. By the writ the sheriff was commanded to proceed to advertise for sale and sell the property, and to make and file his report of the sale with the clerk of the court within sixty days.after his receipt thereof. In obedience to this command, the sheriff published and posted notice that he would sell the property on a day named, and within the time limited for the return of the writ, but no sale was ever made pursuant to that notice, “ action thereon having been indefinitely postponed pursuant to an agreement by the parties plaintiff and defendant that there should be no sale prior to February 24-, 1890.” The sheriff retained the writ, and subsequently again published and posted notice that he would sell the property thereunder on February 24,1890; and on that day he sold the whole block to the plaintiff for the sum of $451.40.
[220]The block sold consisted of fifty-four lots, as shown by an official plat on file in the office of the county recorder, and at the time of the sale was of the value of five thousand dollars.
On February 21, 1891, the defendant moved the court to vacate and set aside the sale made by the sheriff as aforesaid, upon two grounds: 1. Because the property consisted of fifty-four lots, and was sold as a whole; 2. Because the property was advertised for sale and sold after the return day of the writ.
The court overruled the motion on the first ground, and sustained it on the second ground, and thereupon made and entered its order vacating the sale. From this order the plaintiff appeals.
The Code of Civil Procedure, in the chapter headed “The Execution,” provides: —
“ Sec. 681. The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement.
“ Sec. 682. The writ of execution must be issued in the name of the people,” etc.
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