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Oct. 11, 1862, 269.

Judgment roll.

11 Or. 529. 13 Or. 208. 20 Or. 514.

fendant, he shall attach together in the order of their filing, issuing, and entry, the complaint, summons, and proof of service, and a copy of the entry of judgment.

2. In all other cases, he shall attach together in like manner the summons and proof of service, the pleadings, bill of exceptions, all orders relating to change of parties, together with a copy of the entry of judgment, and all other journal entries or orders in any way involving the merits and necessarily affecting the judgment.

3. In all cases, the clerk shall attach upon the outside of the judgment roll a blank sheet of paper, upon which he shall indorse the name of the court, the term at which judgment was given, the names of the parties to the action and the title thereof, for whom judgment was given, and the amount or nature thereof, and the date of its entry and docketing.

Judgment roll. The verity conceded to the judgment roll applies to nothing which it is not the duty of the clerk to record: Hahn v. Kelly, 34 Cal. 391; Douglas v. Wickwire, 19 Conn. 489. As to what is or is not part of the record, it is held that there should be excluded from the judgment roll motions and the papers on which they are founded, together with the ruling of the court thereon: Cornell v. Davis, 16 Wis. 686; Demming v. Weston, 15 Id. 236; matters of evidence, oral or written: Cord v. Southwell, 15 Id. 211; including notes: Reid v. Case, 14 Id. 429; and mortgages: Cord v. Southwell, 15 Id. 211; filed in the case and constituting the cause of action, and proof of the filing of lis pendens: Manning v. McClurg, 14 Id. 350; memoranda of costs and notice of adjustment: S. & S. Plank Road Co. v. Thatcher, 6 How. Pr. 226; the affidavit requisite to authorize the taking of property in replevin: Kerrigan v. Ray, 10 Id. 213; affidavit and order of arrest: Corwin v. Freeland, 6 N. Y. 560; proof of service when the defendant has answered or demurred: Smith v. Holmes, 19 Id. 271; bill of particulars: Kreiss v. Seligman, 8 Barb. 439; pleadings amended or demurrer abandoned: Brown v. Saratoga R. R. Co., 18 N. Y. 495; opinion of the judge: Thomas v. Tanner, 14 How. Pr. 426; affidavit used in support of a motion: Backus v. Clark, 1 Kan. 303; minutes

made by the judge upon the trial docket: Pennock v. Monroe, 5 Id. 578.

An order directing a change of parties forms part of the judgment roll. Where the names of two of the plaintiffs were ordered to be stricken from the complaint, it was held that it was unnecessary to file an amended complaint in the names of the remaining plaintiffs: Tormey v. Pierce, 49 Cal. 307. An answer, though ordered to be stricken out, is entitled to its place on the judgment roll: Abbott v. Douglas, 28 Id. 295. Bills of exceptions are part of the judg ment roll: Wetherbee v. Carroll, 33 Id. 549; Moore v. Del Valle, 28 Id. 170. The affidavit on which a motion to strike out an answer is based does not form part of the judgment roll: Dimick v. Campbell, 31 Id. 238. The motion and order to strike out portions of the original complaint are not parts of the judgment roll: Sutter v. San Francisco, 36 Id. 114; Harper v. Minor, 27 Id. 109; Dimick v. Campbell, 31 Id. 239; Sharp v. Daugney, 33 Id. 513. The action of the court on demurrer is part of the judgment roll, and no exception need be taken: Smith v. Lawrence, 38 Id. 28; overruling to this extent Bostwick v. McCorkle, 22 Id. 669. An order overruling a demurrer is part of the judgment roll: Abadie v. Carrillo, 32 Id. 172. But the notice of the overruling of the demurrer is not a part of the roll

Catanich v. Hays, 52 Id. 338. An order sustaining the demurrer to defendant's cross-complaint constitutes part of the judgment roll: Packard v. Bird, 40 Id. 378. On an appeal from a final judgment ordering a peremptory writ of mandamus, neither the writ, the sheriff's return, nor an acknowledgment of satisfaction thereon constitutes a part of the judgment roll: Gregg v. Pemberton, 53 Id. 251. The return to a writ of review forms part of the judgment roll, and should be included: Johns v. Marin Co., 4 Or. 46. An order of court granting leave to file an amended answer is not part of the judgment roll, nor is the proof of its service on the opposite party: Livermore v. Webb, 56 Cal. 489. In a proceeding for settlement of an administrator's account, the petition and account, and the written objection filed, constitute part of the judgment roll: Estate of Page, 57 Id. 238.

No judgment roll is provided for until the entry of final judgment, and consequently an appeal from an interlocutory judgment in partition will not be dismissed because the entire

judgment roll has not been brought up: Oct. 11, 1862,
Emeric v. Alvarado, 64 Cal. 529. An $269.
interlocutory judgment is, it seems,
properly part of the judgment roll:
Packard v. Bird, 40 Iď. 382.

Form of judgment roll in cases of
judgment by default, see Hahn v.
Kelly, 34 Cal. 403.

The judgment does not depend upon the performance of the clerical duty of making up the judgment roll, or the preserving of the papers: Lick v. Stockdale, 18 Cal. 219; Sharp v. Lumley, 34 Id. 611; Sharp v. Daugney, 33 Id. 505. It is enough if the facts exist which are required to give jurisdiction to the court: Lick v. Stockdale, 18 Id. 223; and the judg ment roll is proper evidence though the papers were never attached together in the form of a roll: Sharp v. Lumley, 34 Id. 614. Absence of a material paper from the transcript, or its loss from the judgment roll, will not affect the judgment so as to prevent the judgment creditor from enforcing his judgment by execution, if otherwise the record is correct and the entries and recitals are in due form: Carland v. Heiberg, 2 Or. 77.

$270.

§ 273. [270.] Instead of the judgment roll prescribed oct. 11, 1862, in section 272 [269], there shall be a final record made of the cause, as provided in this section,

1. When in any action it shall appear that the title to real property, or any interest therein, or any easement, franchise, or right in or to the same, is directly determined or affected by the judgment therein, on motion of either party the court shall order that a final record be made of the cause, and the expense of such record shall be taxed as other disbursements of the action.

2. In all other actions, on motion of either party, the court shall order that a final record be made of the cause, at the cost of the party moving for the same.

When a final record is ordered, it shall be made by the clerk within the time prescribed to prepare a judgment roll, by recording the papers and journal entries, required in such roll, in the order prescribed therefor.

Final record. As to the contents of the final record, see the next preceding section. The final record should show unequivocally what was decided: Dray v. Crich, 3 Or. 300.

The record may be amended, during
the term at which the judgment was
given, to make it responsive to the
facts: Howell v. State, 1 Id. 241.

Final record.

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CHAPTER III.

OF THE ENFORCEMENT OF JUDGMENT IN CIVIL

ACTIONS.

TITLE I.-OF THE EXECUTION.

II. OF PROCEEDINGS AFTER EXECUTION.

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§ 281.

Execution against property may issue after death of judgment debtor, except.

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§ 285.

§ 286.

When garnishee gives sheriff certificate, how sheriff to proceed.
When personal property claimed by third person

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§ 289.

§ 290.

If indemnified, sheriff shall sell notwithstanding verdict.
When sheriff may leave personal property in possession of judgment
debtor.

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§ 295.

When execution not to issue except by leave of the court, and how leave obtained.

§ 296.

Confirmation of sale of real estate, and proceedings thereon. § 297. Who liable for purchase-money in case of eviction of purchaser.

§ 298. Contribution among joint judgment debtors.

§ 299.

§ 300.

Real property, sale of, when absolute and when subject to redemption.
Who may redeem.

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$271.

Enforcement

§ 274. [271.] The party in whose favor a judgment Oct. 11, 1862, is given which requires the payment of money, the delivery of real or personal property, or either of them, of judgment may at any time after the entry thereof have a writ of execution issued for its enforcement, as provided in this title.

Enforcement of judgment by execution. Any court that is competent to pronounce a judgment is competent to enforce it by execution: United States v. Drennen, Hemp. 325. The judgment which will authorize an execution must be final: Truett v. Legg, 32 Md. 150. An execution cannot issue on a merged or satisfied

judgment: McGuinty v. Herrick, 5
Wend. 240; Ruckman v. Cowell, 1
N. Y. 505. A judgment by confes-
sion on a contingent liability under
§ 256 [253] can be enforced by execu-
tion: Allen v. Norton, 6 Or. 344.

See § 334 [331] with relation to exe-
cution on judgment recovered by ten-
ant in dower for her interest in lands.

by execution.

§ 272.

Kinds of exe

275. [272.] There shall be three kinds of execu- Oct. 11, 1862, tions: one against the property of the judgment debtor, another against his person, and the third for the delivery cutions. of the possession of real or personal property, or such delivery with damages for withholding the same.

sued, and what

§ 276. [273.] The writ of execution shall be issued Oct. 21, 1878, § 2 by the clerk and directed to the sheriff. It shall By whom iscontain the name of the court, the names of the parties to contain. to the action, and the title thereof; it shall substantially St. 1878, p. 100. describe the judgment, and if it be for money, shall state the amount actually due thereon, and shall require the sheriff substantially as follows:

1. If it be against the property of the judgment debtor, and the judgment directs particular property to be sold, it shall require the sheriff to sell such particular property and apply the proceeds as directed by the judgment; otherwise it shall require the sheriff to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of the real property belonging to him. on the day when the judgment was docketed in the county, or at any time thereafter.

18 Or. 495.

2. If it be issued after the death of the judgment 50r. 33. debtor, and be against real or personal property, it shall require the sheriff to satisfy the judgment, with interest, out of any property in the hands of the debtor's personal

Oct. 21, 1873, §2. relatives [representatives], heirs, devisees, legatees, tenants of real property, or trustees as such.

By whom issued, and what to contain.

3. If it be against the person of the judgment debtor, it shall require the sheriff to arrest such debtor and commit him to the jail of the county until he shall pay the judgment, with interest, or be discharged according to law.

4. If it be for the delivery of the possession of real or personal property, it shall require the sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may, at the same time, require the sheriff to satisfy any costs, charges, damages, or rents and profits recovered by the same judgment, out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered to be specified therein, if a delivery thereof cannot be had; and if sufficient personal property cannot be found, then out of the real property, as provided in the first subdivision of this section, and in that respect it is to be deemed an execution against property.

See § 157.
Issuance of writ. -The form
prescribed by the statute need not be
strictly followed; it is sufficient if the
statute is followed in substance:
Burdick v. Shigley, 30 Iowa, 63;
McMahon v. Colclough, 2 Ala. 68.
An execution not issued in the name
of the people or not directed to the
sheriff is amendable: Hibbard v. Smith,
50 Cal. 511. The writ should contain
words commanding a levy, or it will
be insufficient: Gaskill v. Aldrich, 41
Ind. 338. An excution must be war-
ranted by the judgment, and must
not exceed it: Davis v. Robinson, 10
Id. 411. If the judgment is for the
payment of money, it is indispensable
that the amount should be stated:
Maxwell v. King, 3 Yerg. 460. If it
directs the levy of more money than
the judgment calls for, it is voidable:
Hunty. Loucks, 38 Id. 372. If for less,
it is irregular: Webber v. Hutchins, 8
Mees. & W. 319. Where the name of
the court was not properly stated, the
execution was held to be a nullity:
Palmer v.
Crosby, 11 Gray, 46. Courts

have (when enough appears on the face of the execution to connect it with the judgment) disregarded variances in names of the parties: Blakev. Blanchard, 48 Me. 297; Barnes v. Hayes, 1 Swan, 304; in the date: Perkins v. Spaulding, 2 Mich. 157; Brown v. Betts, 13 Wend. 30; or in the statement of the amount of the judg ment: Harris v. Alcock, 10 Gill & J. 226; S. C., 32 Am. Dec. 158.

The statute does not require the docketing of the judgment to precede either the issuing or service of the execution. The docket creates and preserves a lien, but without docketing the judgment execution may be issued upon it, and real estate levied upon it and sold: Hastings v. Cunningham, 39 Cal. 144. The plaintiff may order execution to issue; the agency of an attorney is not necessary: Jones v. Spears, 56 Id. 163. Where the clerk improperly refuses to issue execution on a judgment rendered in the court of which he is clerk, on the ground that the judgment has been attached at the suit of another person,

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