Magnaud v. Traeger

This is an original proceeding in mandwn.us to compel respondent, the sheriff of Los Angeles County, to execute a writ of possession issued, out of the superior court for that county in an action of unlawful detainer wherein these petitioners were the plaintiffs.

The action was tried in an extra session of the superior court for Los Angeles County before the Honorable William P. Cary, a judge of the superior court for San Diego

[1] It was the duty of the sheriff to place petitioners in possession notwithstanding the order of Judge Burks. That order was a nullity. Only Judge Cary, before whom the case was tried and by whom the judgment was rendered, had jurisdiction to stay proceedings upon the judgment. In an action of unlawful detainer “any appeal taken by the defendant shall not stay proceedings upon the judgment unless the judge or justice before whom the same was rendered so directs.” (Code Civ. Proc., see. 1176.) This section of the code has been under review in several cases, among them the

It is contended by respondent that even though the order of Judge Burks be invalid the writ of mandate should not issue in this proceeding. The reasons assigned for this contention are: (1) That the life of the writ issued in the unlawful detainer action expired with the expiration of the return day named therein; (2) that because the stay order made by Judge Burks is regular upon its face respondent is-neither obliged nor permitted to question it but must obey it; and (3) that by this proceeding petitioners are attacking an order of the superior court, and that mandamus may not be used to accomplish that purpose.

Has the writ which was issued to respondent as sheriff of Los Angeles County ceased to have any force? That writ, it will be recalled, was received by respondent on the day of its issuance, January 2, 1924, and was made returnable within sixty days thereafter. The present proceeding in mandamus to compel respondent to proceed with the, execution of the writ was initiated in this court January 22, 1924. Not only has the full period of sixty days within which to make return of the writ now elapsed, but in the very nature of things no writ of mandate could have been issued by this court within the time designated for the sheriff’s return, even though we had rendered our judgment immediately upon the submission of this proceeding. One-third of the time fixed for the sheriff’s return had elapsed before the

In so far as the writ is of the nature of a fieri facias, i. e., in so far as it is a writ of execution commanding respondent to satisfy that part of the judgment which awards damages to the plaintiffs in the action, its force has unquestionably been spent. No levy ever was made upon the property of the judgment debtors prior to the return day. [2] In the enforcement of a writ of execution issued upon a common-law judgment for money the levy is the essential act by which the property is set apart for the satisfaction of the judgment; and the officer’s authority to make the levy is limited to the return day of the writ. (Southern California L. Co. v. Hotel Co., 94 Cal. 217 [ 28 Am. St. Rep. 115 , 29 Pac. 627 ].) Petitioners have cited authorities which support the proposition that when a stay of proceedings is ordered the time of the stay is not to be computed as part of the time in which the writ runs to the return day. We have no quarrel with this rule nor with the authorities which sustain it. But here there was no order staying execution. What purports to be such an order was a mere nullity. It was a stillborn, lifeless thing, and in the eye of the law was inexistent.

[3] Though the writ has become functus officio- and ineffective in so far as it is a fieri facias commanding the sheriff to satisfy the judgment for damages, it still possesses life and efficacy in so far as it is a writ of possession directing the sheriff to make restitution of the premises. In precepts for the sale of property under a decree foreclosing a lien upon specific real property the time within which the sale is directed to be made is but directory, and the sale may be made after the return day. (Southern California L. Co. v. Hotel Co., supra.) In such cases the lien is not created by a levy, nor is it created by or under the writ. So also in eases of unlawful detainer, the right to dispossess is not the outgrowth of the writ. The judgment gives in terms the right of re-entry and restitution. The only office of the writ

The fact that the order which Judge Burks signed is regular upon its face does not present an insuperable barrier to the issuance of a writ of mandate to compel respondent to restore petitioners to possession. [4] The authorities are unanimous in holding that mandamus, under ordinary circumstances, is the proper means for compelling a sheriff to enforce a writ of possession. (Fremont v. Crippen, 10 Cal. 211 [ 70 Am. Dec. 711 ]; North Pacific Coast R. Co. v. Gardner, 79 Cal. 213 [ 21 Pac. 735 ]; Quan Wo Chung & Co. v. Laumeister, 83 Cal. 384 [ 17 Am. St. Rep. 261 , 23 Pac. 320 ]; Webster v. Ballou, 108 Me. 522 [Ann. Cas. 1913B, 567, 81 Atl. 1009 ].) Indeed, this much seems to be conceded by respondent. He insists, however, that it is not a sheriff’s duty to sit in judgment upon judicial acts, and that therefore where, as here, a judge of the trial court has made an order staying proceedings, mandamus will not lie to compel him to disobey that order even though it be a nullity.

[5] Without doubt, if a writ or an order commanding a sheriff to do or to refrain from doing an act be legal upon its face and show an apparent jurisdiction, and if the court issuing the writ or making the order has jurisdiction of the subject matter, the officer will be protected when in good faith he acts in obedience to the writ or to the order. But the rule which justifies an officer who acts under an apparently regular order or process is one of protection merely.

We know of no ease which questions the right of the sheriff to inquire into the jurisdiction of the court or judge to make the stay order. Indeed, many of the decisions expressly recognize such right. Thus, in Williams v. Stewart, 12 Smedes & M. (Miss.) 533 , the court says: “The record shows the fiat of the circuit judge, directing the supersedeas to issue, and beyond this the sheriff need not look. It is not for him to inquire into the propriety of the grant of the fiat but only as to the jurisdiction of the court to grant it.” (Italics ours.) In the present case the stay order was a nullity. The subject matter of the order, i. e., the stay of proceedings under a writ of restitution in an unlawful detainer action, was one which lay wholly outside the jurisdiction of the judge who signed the order. [7] It is well established that if the court or judge is without jurisdiction of the subject matter the sheriff not only may refuse to obey a precept from such court or judge, but he will not be protected if he does obey it. In such cases the officer is without authority to act under the void precept. (24 R. C. L., tit. “Sheriffs,” sec. 88.)

[8] There is no merit in respondent’s point that “mandamus is not the proper remedy to use to attack an order staying execution.” The writ of mandate is not sought for the purpose of attacking the stay order. Its direct purpose is to compel respondent to perform a duty enjoined upon him by law. And if between that duty and its performance respondent sees fit to interpose a void order, it cannot be said that the purpose of the mandamus is to attack that order merely because it is our duty to disregard it and to treat it as an unbegotten thing.

It is ordered that the peremptory writ of mandate issue commanding respondent to execute the writ in so far as it

Works, J., and Craig, J., concurred.