FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 1033, 1034; 21 Cent. Dig., cols. 512-514, § 173.

§ 43. Amendment.

[a] An execution will not be set aside because it calls for more money than is called for by the judgment, but will be amended upon due application of the parties, so as to agree with the judgment.-Hunt v. Loucks, 38 Cal. 372, 99 Am. Dec. 404.

[b] An execution which is neither issued in the name of the people, nor directed to the sheriff, is amendable, and therefore not void, but only voidable, and a sale under it is valid. Hibberd v. Smith, 50 Cal. 511.

[c] If the writ commands the sheriff to make a specified sum by levy, distress, and sale out of defendant's property, without showing specifically the amount of the judgment or the amount due upon the judgment, it is not void, but amendable.-Van Cleave v. Bucher, 79 Cal. 600, 21 Pac. 954.

[d] The power to amend a writ of execution is limited to the amendment of the writs of the court, which can only be authenticated, under a law such as ours, by the subscription of the clerk, which subscription is an essential part of the writ, without which there is no execution to be amended.-O'Donnell v. Merguire, 131 Cal. 527, 82 Am. St. Rep. 389, 63 Pac. 847.

§ 45. Nature of Lien.

[a] Levy of execution operates as a lien if there is no judgment lien.-Low v. Adams, 6 Cal. 277.

[b] Levy of execution, while judgment lien exists, does not create a new lien, nor extend judgment lien.-Bagley v. Ward, 37 Cal. 122, 99 Am. Dec. 256-n.

[c] Levy of execution creates no lien, except for purpose of appraisement and sale. Barret v. Sims, 59 Cal. 615.

[d] Levy cannot extend lien beyond lien of judgment. Sanders v. Russell, 86 Cal. 121, 21 Am. St. Rep. 26, 24 Pac. 852.

[e] The lien of the levy of execution is not that of the judgment, and it neither creates a judgment lien, nor extends a judg ment lien once created.-Beaton v. Reid, 111 Cal. 484, 44 Pac. 167.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 1049, 1050; 21 Cent. Dig., cols. 582-583, § 208.

§ 46. Creation and Existence of Lien.

[a] Service of a copy of an execution, and notice of garnishment on a third person, without a levy constitute no lien on property of the debtor in his hands capable of manual delivery.-Johnson v. Gorham, 6 Cal. 195, 65 Am. Dec. 501.

FOR AUTHORITIES FROM OTHER STATES:

See 21 Cent. Dig., cols. 583-586, §§ 209212.

§ 47. Commencement of Lien.

[a] Execution affects property only from time of levy under our statute.-Johnson v. Gorham, 6 Cal. 195, 65 Am. Dec. 501.

[b] When there is no judgment or attachment lien, levy constitutes a lien from its date.-Bagley v. Ward, 37 Cal. 122, 99 Am. Dec. 256-n.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 1050-1052; 21 Cent. Dig., cols. 587-593, §§ 213-215.

§ 48. Priorities Between Executions.

[a] If the execution creditor permits personal property levied on to remain in the hands of the debtor, the levy will not defeat subsequent executions.-Dutertre v. Driard, 7 Cal. 549.

[b] Where there are no judgment or attachment liens on real estate levied on under executions, the execution first levied is entitled to priority.-Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256.

§ 51. Duration of Lien.

[a] The time during which an execution is stayed forms no part of the two years during which a judgment remains a lien, but any period of time between the docketing of the judgment and the stay of the proceedings is to be included in the computation.Barroilhet v. Hathaway, 31 Cal. 395, 89 Am. Dec. 193.

[b] A judgment debtor perfecting an appeal in giving the usual stay bond held entitled to convey the real estate owned by him at the time of the docketing of the judgment.-Austin v. Union Paving etc. Co. (Cal. App.), 88 Pac. 731.

[a] If an execution be issued and levied on real estate during the existence of a judgment lien on such property, and the execution is returned without sale, and after the judgment ilen expires another execution is issued and levied, and a sale is made, such a sale takes effect by relation at the time when the second execution was levied.-Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256.

[b] The levy of an execution on real estate, during the time that the judgment on which the execution issued was a lien on the same, neither extends this lien of the judgment, nor does it create a new lien on the property.-Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256.

[b] Where it appeared by the sheriff's return on an execution that a levy under it was not made until after the expiration of the life of the execution, such levy by a sheriff is without jurisdiction.-Tower v. McDowell, 31 Pac. 843.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 1081; 21 Cent. Dig., cols. 719723, §§ 280, 281.

§ 55. Mode and Sufficiency of Levy.

[a] Where judgment is taken jointly against two defendants it makes no difference, so far as they are concerned, whether the sheriff first levied on joint property or not.Low v. Adams, 6 Cal. 277.

[b] Defendant waives right to designate
property by neglect or refusal to do so.-
Frink v. Roe, 70 Cal. 301, 302, 11 Pac. 820.

[c] Defendant's right to designate property
to be levied on is personal to himself and
may be waived.-Frink v. Roe, 70 Cal. 301,
11 Pac. 820.

[d] Defendant cannot defeat levy by neg-
lect or refusal to designate property to be
levied.-Frink v. Roe, 70 Cal. 301, 11 Pac.

820.

[b] A levy made by a constable on goods
which he does not see or have in his posses-
sion is void.-Herron v. Hughes, 25 Cal. 555.

[c] A levy on a judgment of an execution
issued by a justice of the peace, by deliver-
ing to the judgment debtor a copy of the
writ, with notice in writing that the levy was
upon all the right, title, and interest in and to
the judgment, describing it, and upon all
moneys, goods, credits, effects, debts due
or owing, or in his possession, or under his
control, and requesting him not to pay or
transfer the same except to the officer mak-
ing the levy, is a sufficient levy on the debt
itself, and not on the mere judgment, which
is not subject to execution under Code of
Civil Procedure, section 542, subdivision 5,
providing that the debt itself, and not the
mere evidence thereof, shall be liable to exe-
cution.-Dore v. Dougherty, 72 Cal. 232, 1
Am. St. Rep. 48, 13 Pac. 621.

[d] Code of Civil Procedure, section 688,
provides that shares of stock in a corpora-
tion may be levied on, on execution, in the
same manner as on writs of attachment.
Section 542, subdivision 4, declares that
shares of stock may be attached by leaving a
copy of the writ, and a notice stating that
defendant's stock, or interest therein, is at-
tached in pursuance thereof, with the princi-
pal officer of the corporation. Held that,
for the purposes of levy under execution and
attachment, the debtor's interest in shares is
treated as personal property not capable of
manual delivery, and hence it was not neces-
sary to the validity of an execution sale of
corporate shares that they should be in the
hands of the sheriff in order that they might
be personally delivered to the purchaser.—

[a] Under Statutes of 1850, chapter 25, see-
tion 172, providing that the filing of a judg-
ment creates a lien on the debtor's real es-
tate; and under section 181 et seq., providing
that an execution shall create no lien on
personal property except such as actually
levied on, and that no personal property shall
be sold except in the presence of a purchaser,
and that the sale of realty shall be at the
county seat of the county in which it is
situated a sale of realty was valid without
an actual seizure by the officer.-Smith v.
Morse, 2 Cal. 524.

[b] It is not necessary when an execution
is levied on real estate that a copy of the
same with the levy indorsed thereon should
be filed in the recorder's office.-Bagley v.
Ward, 37 Cal. 121, 99 Am. Dec. 256-n.

[c] Any act on the part of the officer show-
ing the intent to sell the specific land, and
to subject it to the satisfaction of the judg-
ment, constitutes a levying of the execution
as against defendant in the execution, within
the meaning of Practice Act, section 217,
which provides that, until a levy, property
shall not be affected by the execution."-
Blood v. Light, 38 Cal. 649, 99 Am. Dec. 441.

or

[d] When the judgment debtor has,
claims, an interest in only a small, well-de-
fined parcel of a much larger tract of land it
is extremely irregular, to say the least, to levy
the execution upon his interest in the general
tract, instead of the particular parcel he
claims.-Logan v. Hale, 42 Cal. 645.

[e] To make proper levy on lands already
subject to lien of judgment upon which writ
was issued officer need only give statutory
notice of sale and is not required to take pos-
session of the land.-Lehnhardt v. Jennings,
119 Cal. 193-197, 51 Pac. 195.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 1092-1095; 21 Cent. Dig., cols.
757-768, §§ 311-317.

[a] Under Practice Act of 1850, section 189, giving defendant in execution the right of designating the property to be levied on, defendant cannot raise objections to the regularity of the levy, in the absence of a showing that such right was exercised by him and disregarded by the officer; nor can а stranger to the writ question the regularity of the levy for such cause.-Frink v. Roe, 70 Cal. 296, 11 Pac. 820.

[b] A judgment provided that a note and mortgage filed in the case should be delivered to defendant on his payment of the judgment, but he failed to pay the same, and made no attempt to prevent the note becoming barred by the statute of limitations. Held, that he could not object to a levy on and sale of the note and mortgage under the judgment. Hoxie v. Bryant, 131 Cal. 85, 63 Pac. 153.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 1114; 21 Cent. Dig., col. 328, § 55; cols. 828-831, §§ 364-369.

§ 62. Custody of Property.

[a] Where a stranger to an execution is in possession of the property, claiming to own it by virtue of a transfer to him from the debtor which would prevent the latter from retaking the possession, the sheriff cannot justify without producing both the execution and the judgment authorizing its issue.―(1861) Bickerstaff v. Doub, 19 Cal. 109, 79 Am. Dec. 204; (1862) Knox v. Marshall, 19 Cal. 617.

86212. Delivery of Property on Forthcoming or Delivery Bond.

[a] An undertaking exacted by a sheriff before releasing property which he has ascertained to be exempt from execution is void for want of consideration.-Servanti v. Lusk, 43 Cal. 238.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 1124-1135; 21 Cent. Dig., cols. 871-908, §§ 406-433.

§ 63. Effect of Levy.

[a] Levy of execution has no further effect than to fix date or commencement of sheriff's

title, as against all persons who are not parties to the writ under the provision of the statutes of this state.-Blood v. Light, 38 Cal. 649, 99 Am. Dec. 441.

FOR AUTHORITIES FROM OTHER STATES:

27 L. R. A. 374, note. See, also, 17 Cyc. 1116, 1117; 21 Cent. Dig., cols. 836841, §§ 376-380.

V. STAY, QUASHING, VACATING AND RELIEF AGAINST EXECUTIONS.

STAYING EXECUTION, IN GENERAL, § 64.
GROUNDS, § 65.

ORDER AND NOTICE, § 66.
EFFECT, § 67.

BOND OR UNDERTAKING, § 68.
LIABILITIES ON STAY BONDS, § 69.
QUASHING OR VACATING WRIT, § 70.
JURISDICTION, § 71.
GROUNDS, § 72.

PERSONS ENTITLED TO RELIEF, § 73.
TIME WITHIN WHICH APPLICATION FOR
RELIEF MUST BE MADE, § 74.
NOTICE, $ 75.

EFFECT OF QUASHING, § 76.

NATURE AND GROUNDS OF RELIEF, § 77.
IRREGULAR EXECUTION, § 78.

DELAY IN ISSUING EXECUTION, § 79.
EFFECT OF EXECUTION AND SALE
SOUGHT TO BE RESTRAINED, § 80.
LEVY ON PROPERTY CLAIMED BY THIRD
PERSON, § 81.

PROTECTION OF RIGHTS OF OTHER
CREDITORS OR LIENHOLDERS, § 82.
ACTIONS TO RESTRAIN EXECUTION, § 83.
PARTIES, § 84.
PLEADING, § 85.

[a] Court may grant perpetual stay of execution on judgment discharged in insolvency. Imlay v. Carpentier, 14 Cal. 173.

[b] Where a judgment was reversed by the supreme court, and the case remanded for further proceedings, and the clerk of the court below issued an execution for all costs, including those of the appeal and those accruing before notice of the appeal was filed, the judge of the court below had power to stay the execution in the hands of the sheriff until an application could be made to the court to retax and adjust the costs.-Burrill, Ex parte, 24 Cal. 350.

[c] If a judgment upon which an execution issues, and the execution itself are void upon their face, the court has power on motion to afford relief, and can arrest the process.Sanchez v. Carriaga, 31 Cal. 170.

of jurisdiction.-Powers v. Crane, 67 Cal. 65, 7 Pac. 135.

§ 70. Quashing or Vacating Writ.

[a] Proper remedy to prevent enforcement of execution on void judgment is by motion to set it aside.-Luco v. Brown, 73 Cal. 5, 6, 2 Am. St. Rep. 814, 14 Pac. 368.

[b] Order allowing execution without authority may be vacated on motion, though appealable.-Dorland v. Hanson, 81 Cal. 205, 15 Am. St. Rep. 234, 28 Pac. 443.

[c] Where the court has improperly made an order directing execution to issue, it may, on motion, recall the execution, though the order is appealable.-(1891) Buell v. Buell, 92 Cal. 393, 28 Pac. 443.

[d] Court has power of its own motion to declare void an execution which clearly appears to be so on face of records.-Winrod v. Wolters, 141 Cal. 403, 74 Pac. 1037.