Hitchcock v. Caruthers

Harrison, J. The defendant Caruthers appealed a judgment against him for the sum of seven thousand five hundred dollars, and gave to the plaintiff an undertaking, with the other appellants herein as sureties, to stay the execution of the judgment pending the appeal. The judgment was affirmed in this court, and, after the filing of the remittitur in the court below, judgment was entered against the sureties in the undertaking in accordance with the provisions of section 942 of the Code of Civil Procedure. Execution was thereupon issued upon the judgment against the defendant, under which the sheriff levied upon certain personal property in the possession of the defendant, and sold the same to the respondent, who had become the assignee of the judgment, and the proceeds were credited upon the judgment. The balance of the judgment was paid in money by the defendant, and thereupon the plaintiff satisfied of record the judgment against the defendant, and also the judgment against the sureties. After these judgments had been thus satisfied, the wife of the defendant brought an action against the respondent for the recovery of the property purchased by him at the sale, and in that action it was adjudged that at the time of the levy and sale the property was not the [102]property of the defendant, but belonged to his wife, and the property was taken from the respondent and delivered to the owner. Thereupon, upon motion of the respondent, the court made an order under the provisions of section 708 of the Code of Civil Procedure, reviving the judgment in his favor for the sum of six hundred and seventy-five dollars, the amount in which the judgment had been credited for the property lost by him in the above action, and afterwards ordered that judgment for the same amount be entered against the sureties. This last order was made upon notice thereof to the attorney for the defendant, but no notice thereof was given to the sureties, or either of them. The defendant has appealed from the judgment so revived against him, and the sureties from the judgment entered against them.

Section 708 of the Code of Civil Procedure provides that “if the purchaser of property at sheriff’s sale, or his successor in interest, fail to recover possession in consequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the court having jurisdiction thereof must, after notice and on motion of such party in interest or his attorney, revive the original judgment in the name of the petitioner, for the amount paid by such purchaser at the sale,” etc. In Cross v. Zane, 47 Cal. 602, it was held that, as this section is remedial in its character it is to be liberally construed, and that, if the property sold was not the property of the defendant in the execution it amounted to a sale of property not subject to execution and sale within the intent of the statute; and upon the principles of that case it must be held that, if the purchaser lose the possession of the property after its purchase because it was not the property of the defendant in the execution, he is entitled to the remedies afforded by the act. In Meredith v. Santa Clara Mining Association, 60 Cal. 617, it was held that upon a motion to enter judgment against the sureties on their undertaking to stay execution pending the appeal provided fpr by section 942, no notice to them is