as the fact may be, and such entry shall have the same effect as if entered in term time. In the entry of all judgments, except judgments by default for want of an answer, the clerk shall be subject. to the direction of the court. Dec. 20, 1865, $8. Entry of judg- when made. 15 Or. 95. $258. Judgment in terclaim. $259. § 261. [258.] If a counterclaim established at the oct. 11, 1862, trial exceed the plaintiff's demand so established, judgment for the defendant shall be given for the excess; or case of counif it appear that the defendant is entitled to any other affirmative relief, judgment shall be given accordingly. § 262. [259.] In an action to recover the possession Oct. 11, 1862, of personal property, judgment for the plaintiff may be for the possession, or the value thereof in case a delivery cannot be had, and damages for the detention thereof. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same. Judgment for recovery of personal property: See ante, §§ 133143 [131-141]. If the judgment is not in the alternative form here provided for, it will be reversed: Berson v. Nunan, 63 Cal. 550. Judgment in action for re- covery of per 10 Or. 204. 15 or. 95. § 260. want of Judgment for answer, on § 263. [260.] When judgment is given for want of an- Oct. 11, 1862, swer, the entry shall state substantially that the defendant has been duly served with the summons, and has failed to answer the complaint. When judgment is given on confession, etc confession, with or without action, on the report of referees, or on a controversy submitted without action, the entry shall state in like manner the confession and assent thereto, the report of the referees, or agreed case, as the case may be. 261. § 264. [261.] When a decision has been made sus- Oct. 11, 1862, taining or overruling a demurrer, unless the party against whom the decision is made be allowed to amend demurrer. or plead over, judgment shall be given for the plaintiff Judgment on Oct. 11. 1862, 261. Judgment on demurrer. Oct. 11, 1862, $262. When entry of judgment made. 6 Or. 314. 6 Or. 170. Oct. 11, 1862, 263. Judgment notverdict. or defendant, as the case may be, for such amount or relief, or to such effect, as it appears from the pleadings he is entitled to; but if the cause is otherwise at issue upon a question of fact, the court may order the entry of judgment to be delayed until such issue be tried or otherwise disposed of. § 265. [262.] When judgment is given in any of the cases mentioned in sections 263 [260] and 264 [261], unless otherwise ordered by the court, it shall be entered by the clerk within the day it is given. Except as in this section hereinafter provided, when a trial by the court has been had, judgment shall be entered by the clerk in conformity with the decision within two days from the time the same is filed; or if the trial be by jury, judgment shall be given by the court in conformity therewith, and entered by the clerk within two days from the time the verdict has been received, and in either case within the term at which such judgment is given, 1. When the court is in doubt what judgment ought to be given, it may order the question to be reserved for argument or further consideration, and thereupon the entry of judgment shall be delayed until judgment be given; 2. When, within the time allowed to file a motion for new trial, either party shall file a motion for a particular judgment, or for judgment notwithstanding the verdict or decision; or, 3. When a motion for new trial is filed within the time prescribed, the entry of judgment shall be thereby delayed until the motion is disposed of; 4. When, upon a trial by the court, its decision is filed in vacation, the entry of judgment shall be delayed until the expiration of the time prescribed to file a motion for a new trial. § 266. [263.] When it appears from the pleadings that the court has not jurisdiction of the subject of the withstanding action or the person of the defendant, or that the facts stated in the pleadings of the plaintiff or defendant, as the case may be, do not constitute a cause of action or 14 Or. 449. $263. defense thereto, and that such objection has not been Oct. 11, 1862, Judgment notwithstanding verdict. Where one asks for a judgment notwithstanding the verdict, he must point out such a defect as the verdict will not cure: Aiken v. Coolidge, 12 Or. 244. When the objection that the pleading does not state a cause of action or defense, as the case may be, is not raised until trial, the party objecting should be compelled to resort to the motion for judgment notwithstanding the verdict in case it is against him. When it is claimed that a pleading does not state a cause of action or Judgment not verdict. $264. Entry of judg ment after mo § 267. [264.] When a motion for new trial, for a oct. 11, 1862, particular judgment, or for a judgment notwithstanding the verdict, is decided in vacation, the decision shall be in writing and filed with the clerk. Within the day of such filing, judgment shall be entered by the clerk in tion. conformity with the decision. tion for a new trial, etc., de cided in vaca $265. Entry of judg- ment after § 268. [265.] When the clerk is unable or omits to Oct. 11, 1862, enter judgment within the time prescribed in this title, if the judgment has been given in vacation it may be entered at any time thereafter, of the date which it is actually entered; if it has been given in term time, it may be entered at any time during the term, of the day's proceedings on which it should have been entered, or, on motion of the party entitled, at any subsequent term, of the day on which it is actually entered. § 269. [266]. Immediately after the entry of judg- oct. 11, 1582, ment in any action, the clerk shall docket the same in. $266. Oct. 11, 1862, $266. Judgment to be lien from time of docketing. 10 Or. 324. 12 Or. 14. 12 Or. 349. 20 Or. 458. the judgment docket. At any time thereafter, while an execution might issue upon such judgment, and the same remains unsatisfied in whole or in part, the plaintiff, or in case of his death his representative, may file a certified transcript of the original docket in the office of the county clerk of any county in this state. Upon the filing of such transcript, the clerk shall docket the same in the judgment docket of his office. From the date of docketing a judgment as in this title provided, or the transcript thereof, such judgment shall be a lien upon all the real property of the defendant within the county or counties where the same is docketed, or which he may afterwards acquire therein, during the time an execution may issue thereon. Lien of judgment. - The lien of a judgment arises from the docketing, and not from the judgment; it is a strict legal right, which must stand or fall by the statute which gives it: In re Boyd, 4 Saw. 262. A judgment which by its terms cannot be enforced against the property of a party cannot become a lien thereon: Id. A judgment becomes a lien from the time of the docketing of the judgment: Stannis v. Nicholson, 2 Or. 332; Barroilhet v. Hathaway, 31 Cal. 397; Eby v. Foster, 61 Id. 282; or from the time of filing the transcript from another county: Donner v. Palmer, 23 Id. 45; Creighton v. Leeds, 9 Or. 215. The lien is not subject to control of the court so as to confine its operation to a particular piece of property: Castro v. Illies, 13 Tex. 229. The character of the cause of action does not affect the nature of the lien. Thus a judgment for purchase-money confers no lien superior to a judgment for any other cause of action: Fisher v. Foote, 25 Id. 311. Delashmutt v. Sellwood, 10 Or. 319. The docket entry is not part of the judicial proceeding, which ends with the entry of judgment, and therefore the entry of the judgment cannot be referred to for the purpose of supplying omissions or explaining ambiguities in the docket; the latter must be complete in itself. But the whole entry of the docket is to be looked to, and not merely a single item of it; and if from the whole, the amount and date of the judgment, the parties to it, and the court in which it was rendered appear, the entry will be held sufficient: In re Boyd, 4 Saw. 262. What property affected by lien. - The judgment is not a lien, in Oregon, upon mere equitable interests in real property: Smith v. Ingles, 2 Or. 43; Bloomfield v. Humason, 11 Id. 229; but is a lien upon all other real property not exempt from execution in the county or counties where the judgment is docketed: Creighton v. Leeds, 9 Id. 215. It affects only such property as the judgment debtor has a vested interest in: People v. Irwin, 14 Cal. 434. Fixtures are realty, and are affected by a judgment lien: R. R. Co. v. James, 6 Wall. 750. Estates for years are not realty within this sense: Merry v. Hallett, 2 Cow. 497; Vredenberg v. Morris, 1 Johns. Cas. 223. The rights of the lien owner cannot exceed those which might be acquired by a purchase from the defendant, with full notice of all existing legal or equitable rights belonging to third persons: Baker v. Morton, 12 Wall. 150. The attaching of the lien upon the legal title forms no impediment to the assertion of all equities previously existing over the property: Stannis v. Nicholson, 2 Or. 332; Coster's Ex. v. Bank of Ga., 24 Ala. 37, 64. Priority of lien. Where there are several judgments, the lien of the one first docketed takes precedence: Oct. 11, 1862, and renewal § 270. [267.] Whenever, after the entry of judgment, Oct. 20, 1864, $8. a period of ten years shall elapse without an execution Expiration being issued on such judgment, the lien thereof shall of lien. expire. If afterwards leave is given to issue execution thereon, a transcript of the docket of the order allowing the same may be docketed in any other county in the state, in the same manner as a judgment. From the date of docketing such order or a transcript thereof, the lien of the judgment shall begin anew and continue in all respects as upon the first docketing of the same. Time of existence of lien. Under this section and § 295 [292], post, it is in the power of the judgment creditor to keep the judgment alive until it is discharged by payment: Murch v. Moore, 2 Or. 189. Alteration of county boundaries will not extend the term of the lien: Bow man v. Hovious, 17 Cal. 474. The § 268. over unreances. Priority of lien corded convey § 271. [268.] A conveyance of real property or any oct. 11, 1862, portion thereof or interest therein shall be void as against the lien of a judgment unless such conveyance be recorded at the time of docketing such judgment or the transcript thereof, as the case may be, or unless it be re- 13 Or. 305. corded within the time after its execution provided by 19 Or. 469. law, as between conveyances Priority of lien over unrecorded conveyances. Though the section says that a conveyance is void as against a judgment lien unless it is recorded before the judgment lien is docketed, or within the time after its execution provided in chapter 6 of for the same real property. $269. § 272. [269.] After docketing the judgment, and be- Oct. 11, 1862, fore the next regular term of the court, the clerk shall prepare and file in his office the judgment roll as provided in this section, 1. If the complaint has not been answered by any de Judgment roll. 3 Saw. 274. 10 Or. 395. |