Summary
In Rogers v. Druffel, 46 Cal. 654, it was held that an order enjoining a sale, issued at the suit of a third party, did not prevent the expiration of the two year lien, nor extend the time within which a sale might be made.
Summary of this case from Union Contracting & Paving Co. v. CampbellOpinion
Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.
The plaintiff had judgment and the defendant appealed.
COUNSEL:
A. W. Thompson, for Appellant, cited Barroilhet v. Hatha- way, 31 Cal. 397; Crocker on Sheriffs, sec. 416; dissenting opinion in Bagley v. Ward, and cases there cited.
Daniel Rogers, for Respondent, referred to Bagley v. Ward, 37 Cal. 121; Barroilhet v. Hathaway, 31 Cal. 395; Levy v. Getteson, 27 Cal. 688; Laskey v. Davis, 33 Cal. 677.
OPINION
By the Court:
Action to quiet title to a lot in the city of San Francisco. Both parties claim this under John G. Gimmy. The plaintiff's deraignment of title is as follows: In an action for divorce brought by Anna M. Gimmy against John G. Gimmy, a judgment was entered April 1, 1861, in favor of Anna against John G. Gimmy, for a divorce and for the recovery of one hundred dollars, counsel fees, and her costs, taxed at four hundred and twenty-two dollars, and the judgment was duly docketed. In May, 1861, an execution was issued on that judgment, and under it the Sheriff sold the property, and in pursuance thereof, in April, 1862, executed the deed of conveyance, under which the plaintiff claims title.
The defendant's deraignment of title is as follows: Maria B. Gimmy recovered a judgment for five thousand dollars against John G. Gimmy, February 1, 1860, and it was docketed on that day. On the fourth of March, 1861, an execution was issued on the judgment, and on that day the Sheriff levied upon the premises in controversy. In an action commenced by Anna M. Gimmy against Maria B. Gimmy and the Sheriff, a temporary order of injunction was issued in March, 1861, restraining the sale under the last mentioned execution; and in November, 1862, the injunction was dissolved. In June, 1863, on motion of Maria B. Gimmy, the District Court ordered an alias execution to issue, and it was accordingly issued, and under it the Sheriff sold the premises in July, 1863, and in pursuance of such sale the Sheriff executed a deed of the premises to the defendant in April, 1864. It thus appears that the defendant's judgment lien first attached; that his execution was levied, but his sale was not made within two years from the docketing of the judgment, unless the time during which the sale was restrained by injunction be deducted.
It was held in Bagley v. Ward, 37 Cal. 121, after full and deliberate consideration, that a judgment creditor, in order to preserve the priority of his lien, must sell the real property within the period of the statutory lien of the judgment; and that the levy of an execution during that period, neither created a new lien nor extended the judgment lien. We have seen nothing since that decision to shake our confidence in the principles there laid down.
It was held in Barroilhet v. Hathaway, 31 Cal. 395, that " the two years mentioned in the two hundred and fourth section of the Practice Act, which relates to judgment liens, commence to run from the docketing of the judgment, unless execution is stayed by an order of the Court pending a motion for a new trial, or by an appeal with a stay bond." In view of that construction of the statute, we hold that the order of injunction mentioned in this case, did not stop the running of the statute.
The judgment under which the plaintiff claims, cannot be attacked collaterally, on the ground that the costs were improperly taxed or inserted in the judgment.
Judgment affirmed.