may recover the balance by civil action, without costs. [66 v. 144, 1.]

25365. Provisions of this chapter apply to supreme and probate courts. The provisions of this chapter shall apply to the supreme court and probate court, so far as the same may be applicable to their judgments or final orders; and in estimating time the probate court shall, for this purpose, be considered as holding, in each year, three terms, of four months each, the first commencing on the first of January of each year. [51 v. 57, ? 542; S. & C. 1115.]

Judgments of the supreme court commission can be modified by the supreme court, 34 O. S. 672. Parties have not a right to a rehearing after the decision of a cause by the supreme court unless the application comes within the provisions of this section. Nor can such rehearing be ordered by the court after the term at which the judgment was entered if the case is not within those provisions, 26 O. S. 378. The provisions of ? 5354, as extended by this section, do not confer power upon a probate court in proceedings instituted under 5358 to vacate or modify its own orders previously made in the settlement of the accounts of executors and administrators, 26 O. S. 357.

CHAPTER VII.

REVIVOR OF, AND NEW PARTIES TO, JUDGMENT. 25366. How parties not served made parties to judgments in case of joint contracts. When judgment is rendered in this state on a joint contract or instrument, parties to the action who were not summoned, and persons whose liability was not known to the plaintiff at the rendition of the judgment, may be made parties thereto by action in the same court, if they can be summoned in the state; or, when the judgment is rendered elsewhere, the plaintiff may bring suit upon such contract or instrument against the parties not summoned, or persons whose liability was unknown, in any county where any such parties reside or may be summoned. [48 v. 31, 1; 56 v. 39, 2 415; S. & C. 1060, 1149.]

In an action under this section to make a joint maker not served party to a judgment, it is no defense to show that the original action was brought before the maturity of the note, 42 O. S. 11; but where it was sought to make one a party to a judgment who was originally named as a party but not served, it was held a good defense to show that no judgment could have been rendered against him if originally served, 19 O. 372. Upon the peculiar facts of that case (19 0.372] we have no dis

position to question the entire soundness of the conclusion reached. No joint liability was ever incurred upon the note in suit, and so, in legal effect, the court found, although one of the defendants was in default," 42 O. S. 13.

? 5367. Revivor of dormant judgment. When a judgment, including judgments rendered by a justice of the peace or mayor, a transcript of which has been filed in the court of common pleas for execution, becomes dormant, it may be revived in the same manner as prescribed for reviving actions before judgment, or by action; when either party to such dormant judgment, his agent or attorney, makes affidavit showing that the adverse party is a non-resident of the state, and that such judgment remains unsatisfied, in whole or in part, and the amount owing thereon, service may be made by publication as in other cases; if sufficient cause be not shown to the contrary, the judgment shall stand revived for the amount which the court finds to be due and unsatisfied thereon; and the lien of the judgment for the amount due shall be revived, and shall operate from the time of the entry of the conditional order, or the filing of the petition. [57 v. 4, 2 490; 62 v. 40, 21; 64 v. 236, 2417; S. & C. 1093; S. & S. 421, 562.]

See 25380. Revivor of judgment of justice of the peace. ? 6681. Where a judgment is revived, it is revived with all its incidents as between the parties, 5 0.178; but the title of a purchaser from the judgment debtor is, on the judgment becoming dormant, discharged from the lien, and the subsequent revivor of the judgment will not affect the title, Id.; 10 O. 403; 15 O. 301; 25 O. S. 358. If a judgment is obtained on unsealed process, and such judgment be afterwards revived without objection, the want of a seal does not impair the validity of the judgment, 15 0.735.

2 5368. Id. Limitation. An action to revive a judgment can only be brought within twenty-one years from the time it became dormant, unless the party entitled to bring such action was, at the time the judgment became dormant, within the age of minority, of unsound mind, or imprisoned, in which cases the action may be brought within fifteen years after such disability is removed. [83 v. 74; 73 v. 148, ? 1.]

See ? 4978n.

25369. Revivor when party dies after judgment. If either or both of the parties die after judgment rendered, and before satisfaction thereof, their representatives,

real or personal, or both, as the case may require, may be made parties to the judgment, and the same may be revived by an action brought for that purpose; or they may be made parties thereto in the same manner as is prescribed for the revival of actions before judgment; and such judgment may be rendered and execution awarded as might or should have been given or awarded against the representatives, real or personal, or both, of such deceased party; and where any judgment or decree has been rendered in the circuit court of any county, and a mandate has been directed to the common pleas court to carry the same into execution, and if either or both parties thereto die before satisfaction thereof, the same may be revived in such common pleas court in conformity with this section. [82 v. 34; 77 v. 201; 51 v. 57, 416; S. & C. 1060.]

See 1 C. C. R. 32; 35 O. S. 430. A judgment in personam, under which no specific lien on real estate was acquired during the life time of the judgment debtor, can not be revived and enforced against the heirs, 29 O. S. 257.

25370. Partners may be made parties to judgment against firm. The members of a partnership, against which a judgment has been rendered by its firm name, may be made parties to the judgment by action. [44 v. 66, ? 4; S. & C. 1139.]

This section applies only to unincorporated companies. Neither corporations de jure nor de facto are within its provisions. And an action can not be maintained under this section to charge the stockholders with the payment of a judgment against the corporation, 38 O. S. 269.

25371. Sureties on bond of executor, etc., parties to judgment. Sureties to the bond of an executor, administrator, guardian, or trustee, may be made parties to a judgment thereon against the principal, by action. [51 v. 397, 22; S. & C. 1139.]

DIVISION V.

ENFORCEMENT OF JUDG

MENT.

CHAPTER I.

EXECUTION.

SUBDIVISION I. KINDS OF EXECUTION.

An exe

25372. Execution, how issued and directed. cution is a process of the court, issued by the clerk, and directed to the sheriff of the county; and executions may be issued to the sheriffs of different counties at the same time. [51 v. 57, 418; S. & C. 1062.]

In Ohio sales of real estate under decrees either final or interlocutory are to be conducted as upon execution at law. Orders of sale issued on such decrees are executions under 2 5372 and 5373, 2 C. C. R. 330; see 19 Bull 221, 2 5373.

25373. Kinds of executions. Executions are of three kinds:

1. Against the property of the judgment debtor, including orders of sale.

2. Against the person of the judgment debtor.

3. For the delivery of the possession of real property; in which case the writ shall contain a specific description of the property, and a command to the sheriff to deliver the property to the person entitled thereto; and the writ may also require him to make the damages recovered for withholding the possession, and costs, or costs alone, out of the property of the person who so withholds the possession. [51 v. 57, 22 419, 487; S. & C. 1062, 1093.]

SUBDIVISION II. EXECUTION AGAINST PROPERTY. 25374. Property subject to levy and sale. Lands and tenements, including vested interests therein (1), and permanent leasehold estates renewable forever (2), and goods and chattels (3), not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold as hereinafter provided. [37 v. 44, 1; 51 v. 57, 420; S. & C. 1063, 1142.]

1. Curtesy of husband, 12 O. 79; 5 Bull 26; 1 Id. 173; devised property, the will exempting it from debt, 15 O. S. 419; equity of redemption, 10 O. 71; fraudulently conveyed land, 10 O. 162; 40 O. S. 107; possessory rights, 10 O. 403; 40 O. S. 635; vested remainder held under legal title, 31 O. S. 175; but equitable estates

are not, 5 O. S. 253; 40 O. S. 117; nor trust estates, 1 O. 257; 16 O. 469; nor public property not held for private purposes, see 5 Bull 684; 4 Bull 75; nor property in the custody of a receiver, without leave of court, 10 O. S. 372, 404; 20 O. S. 137. 2. Perpetual leasehold, 13 O. 334; 11 O. 355. Leasehold property, see 4 Bull 961; 1 Id. 173. 3. Equity of redemption in chattel mortgage, 14 O. S. 457; 20 O. S. 38; exempt property until selected, 38 O. S. 416; growing crops, 11 O. 364; partnership goods, 16 0. 142; 18 O. 181; 12 O. S. 647; but unissued bank bills are not, W. 455; nor unissued bonds of a railroad company, 2 D. 465; nor property in the hands of a bailee, 16 O. 431; nor pledged property, 2 C. S. C. R. 299.

25375. When lien of judgment attaches to lands or goods. Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered (1); but judgments by confession (2), and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered; and all other lands, as well as goods and chattels of the debtor, shall be bound from the time they are seized in execution (3). [37 v. 44, 21; 51 v. 57, 421; S. & C. 1064, 1142.]

1. 17 O. S. 231; see 16 O. 111, 534. Held, that lien dated from 10 A. M., by rule of court fixed under 55 v. 83, though court met later, 17 O. S. 231. 2. Formerly they were a lien from the first day of the term, 14 0. 514 (act 1831), and see 3 0.65. Judgments confessed during term, postponed to judgments in pending actions, rendered at same term, 5 O. 48. 3. But where the officer indorsed a paper levy, and allowed the debtor to retain control of the property with power of use and sale in the usual course of business, the levy was held void and the goods and chattels subject to seizure on execution in favor of other creditors, 33 O. S. 85. When a valid levy has been made upon goods and chattels in the hands of the officer, a constructive levy of subsequent executions coming into his hands before sale may be made by indorsement merely; but when the original levy is a mere paper levy, and therefore void, a constructive levy of actual executions will not bind the property against subsequent executions actually levied thereon, Id.; see 40 O. S. 335. No entry by the sheriff upon real estate is necessary to constitute a valid levy thereon, 38 O. S. 610. The levy of a foreign execution is complete when indorsed on the execution and before entry thereof, as required by 1212, Id.

Extent of and property subject to judgment liens. Judgment liens exist only by statutory creation, 33 Ö. S. 379; 2 O. S. 36; 24 O. S. 379. To operate as such the judgment must be final, 8 O. 136; 33 O. S. 376. They are not vacated by appeal, 15 O. S. 310; see 5376; nor affected by a second trial, 37 O. S. 392; nor by the organization of a new county including the incumbered land, 11 O. 98. A judgment lien is co-extensive with the jurisdiction of the