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30 Cal. 367

Heyman v. Babcock

California Supreme Court

Decided October 15, 1866

California Supreme Court · decided 1866-10-15

, District, City and County of San Francisco. Ejectment to recover a lot of land in the City of San Francisco, lying in the angle formed by Centre and Valencia streets. Marcus Lowell, and Ellen, his wife, on the 4th day of December, 1855, executed to plaintiff a mortgage on the demanded premises. A judgment was rendered on the 15th day of September, 1856, foreclosing the mortgage and directing a sale of the mortgaged premises.

Good law ✅— No negative treatment on recordhow we know

Decided 1866-10-15

How this case has been cited

Cited by 11 later decisions — most recently December 1954

11 state decisions

301866187018801890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Sanderson, J., also concurring :

¶1There are two modes of enforcing final judgment—first, by execution, and second, by a certified copy of the judgment. The first is the proper mode, where the judgment requires the payment of money or the delivery of real or personal property; and the second is the proper mode where the judgment requires the performance of any other act. (Practice Act, Sec. 213.) A judgment which directs the sale of specific property to satisfy a mortgage or other lien upon it, falls within the second class, and is to be enforced by the proper officer under a certified copy of the judgment. If the judgment contains specific directions, they must be followed by the officer; but if the direction is general, to the effect that the sale be made as sales under an execution are made, the officer must follow the statute regulating such sales. In the second class of judgments a certified copy is as indispensable as an execution in the first, and an officer has no more authority to enforce a judgment of foreclosure without a certified copy of the judgment than he would have to enforce a simple money judgment without an execution ; and to make out a title the production ' of a certified copy of the judgment is as indispensable in the one case as the production of an execution in the other.

¶2I do not desire to be understood as intimating that the process heretofore in use to a greater or less extent, called an order of sale, is not valid. Such orders contain a substantial copy of the judgment, and doubtless, in view of the great length of time they have been in use without question, should be held sufficient; but where the statute is plain and simple it is better to use the process which it provides than to invent a substitute. For these reasons, in addition to what has been said by Mr. Justice Rhodes, I concur in reversing the order from which the appeal is taken.

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