Morris v. Winans

been set aside, and not of the last and final judgment in the action. If this irregularity rendered the writ entirely void, plaintiff was entitled to relief; otherwise not. If the writ was merely irregular and subject to an amendment, the plaintiff cannot attack it in this way as against the defendant, a purchaser for value. In the case of O’Donnell v. Merguire, 131 Cal. 527 , [ 82 Am. St. Rep. 389 , 63 Pac. 84 ], in considering the power of a court to amend writs, it is said: ‘ ‘ The power of courts to amend writs issuing from them, when defective or irregular, has long been exercised, and in modern times with increasing frequency; nor is it easy to prescribe definite limits to the power (1 Freeman on Executions, see. 63); and it is also settled that, if the writ be amendable, it will be accorded the same effect with reference to acts done in execution of it, as if it had been amended. (1 Freeman on Executions, sec. 71b; Hunt v. Loucks, 38 Cal. 372 , 374, [ 99 Am. Dec. 404 ].) ” In Hunt v. Loucks, cited by the court in the last-mentioned case, we find this expression of the established rule: “That, as a general rule, an execution must follow the judgment, and conform to it, and that if it varies materially from it, it' will be set aside, or quashed, or amended, as the case may be, upon the motion of the parties to it, who are prejudiced by the error, is undoubtedly true, as appears by the cases cited by counsel. ... We understand the settled rule to be that if the execution be merely erroneous — that is to say, voidable — a sale under it to a bona fide purchaser will be valid, although the execution be afterwards set aside; but if the execution be irregular — that is to say, void — a sale under it, even to a bona fide purchaser, will also be void.” In the same case the court, speaking to the question of a voidable execution as distinguished from a void one, says: “Nor if B, who is bound to know of the variance between the judgment and the execution, does not interpose by motion for its correction, ought he to be allowed to question the title of a purchaser under it — it may be years afterward 1 He has a remedy by motion to amend, or by action to recover the excess of the levy from the plaintiff in the execution, and the clerk, also; besides, with full knowledge of all defects, he has allowed the sheriff, acting as his agent in the matter, to sell, and the purchaser to buy, without opening his lips, and in all fairness and justice to the latter, he must keep them closed forever” (citing cases). The execution in this case

was defective only in that the date of the entry of judgment was misstated; there was an existing valid judgment against the defendant at the time of its issuance, and the amount of that judgment was correctly stated in the writ; there was only one existing judgment and that judgment would appear by an-inspection of the record, for the reference as given in the writ referred to and identified the case in which the final judgment had been entered; it was the same case in which the first judgment, entered as of the date mentioned in the execution, had been made and afterward vacated on appeal. In Franklin v. Merida, 50 Cal. 289 , that being a case where the execution erroneously recited the date of the judgment, the court said: “Nor was there any necessity to amend the writ of execution, for though it erroneously recited that the judgment had been rendered on the first day of October, 1874, still it otherwise correctly referred to the judgment in such a manner as to identify it.” Van Cleave v. Bucher, 79 Cal. 600 , [ 21 Pac. 954 ], was a case wherein the writ of execution did not correctly state the amount of the judgment. The court there said: “If amendable, the writ was not void, but only voidable, and should have been served and returned by the sheriff. (Freeman on Executions, sec. 103; Hibberd v. Smith, 50 Cal. 511 .)” In Sprott v. Reid, an Iowa case, reported in 3 G. Greene, 489, [ 56 Am. Dec. 549 ], a similar question was considered and the court declared its conclusion as follows: “The variance between the date of the judgment and the date as recited in the execution is urged as sufficient to invalidate the sale. It is true, as a general rule, that the execution must pursue and be warranted by the judgment. But the variance complained of in this instance is one that might have been amended. It is one of those irregularities which should be regarded as voidable only, and we consider it not enough to invalidate the sale in a collateral proceeding like the present. The execution so describes and identifies the judgment as to render certain the authority upon which it issued, and that was sufficient to invest the sheriff with power to sell.”

As a ground for further objection, it is said that in the certificate of sale the sheriff declared that he had offered the property for the sum of $236.55; that under the provisions of the code regulating the matter of execution sales the sheriff was required to offer the property to the highest bidder at

public auction. (Code Civ. Proc., sec. 694.) It is true that the certificate of sale issued by the sheriff did contain an expression such as that described; but upon an examination of the whole document as it is set out by copy in the transcript, we find ample recitals to the effect that the property was sold at public auction in accordance with the statute, and that "Winans was the purchaser and highest bidder.

We find no error in the judgment and no sufficient reason why the order denying a new trial should be disturbed.

The judgment and order are affirmed.

Conrey, P. J., and Shaw, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 24, 1916.