CHAPTER XIII. Executions. TITLE 1.- Forms of Execution; Time and Manner of Issuing an Execution: General Duties and Liabilities of Officers. TITLE II.-Execution Against Property. TITLE III.-Execution Against the Person. TITLE I. Forms of execution; time and manner of issuing an execution; general duties and liabilities of officers. Sec. 1362. To whom execution directed; provision where sheriff is a party. 1363. Time of receipt to be indorsed on execution. 1364. The different kinds of execution. 1365. To what counties executions may issue. 1366. General requisites of executions. 1367. Id.; when issued on filing transcript from justice's court, etc. 1369. Id.; against property 1370. Id.; where a warrant of attachment has been levied by sheriff. 1371. Id.; against executor, etc. 1372. Id.; against the person. 1373. Id.; for delivery of property. How money, recovered by same judgment, may be collected. 1374. Separate executions, where separate sums awarded. 1375. Execution of course, within five years. 1376. Execution, after death of judgment creditor. 1377. When execution may be issued after five years. 1378. Id.; leave, how obtained. 1379. No execution against decedent, except, etc. 1380. Execution against decedent's property. 1381. Leave, how obtained. 1382. Time of stay by order, etc., not reckoned under this title. 1383. Execution against surviving judgment debtors. 1384. Sale on execution, etc.; when and how conducted. 1385. Penalty for taking down or defacing notice of sale. 1386. Validity of sale, when not affected by sheriff's default, etc. § 1362. To whom execution directed; provision where sheriff is a party. An execution must be directed to the sheriff, unless he is a party or interested; in which case it must be directed as prescribed in section 173 of this act. But the court may, in its discretion, order an execution, issued upon a judgment renlered against a sheriff, either alone or with another, to be directed to a person, designated in the order, instead of to the coroners, or a particular coroner; in which case it must be so directed. The person so designated must be of full age, a resident of the State, and not a party to the action, or interested therein. Where the execution is issued upon a judgment for a sum of mony, or directing the payment of a sum of money, the order does not take effect, until the person so designated executes, and files in the clerk's office, a bond to the people, with at least two sureties, approved by a judge of the court, or a county judge, in a penal sum, fixed by the order, not less than twice the sum to be col lected by virtue of the execution; conditioned for the faithful performance of his duties under the execution. A certified copy of the order, and, where it requires a bond to be given, the clerk's certificate that a bond has been filed, as required by the order, must be attached to the execation. The person so designated is deemed an officer; and, with respect to that execution, he is subject to the obligations and liabilities, and has the power and authority of a coroner, and is entitled to fees accordingly. Co. Proc., part of § 289, and 2 R. S. 364, §§ 11 and 12, am'd. See 3 T. & C. 608. § 1363. Time of receipt to be indorsed on execution. The sheriff, to whom an execution is directed and delivered, must, upon the receipt thereof, indorse thereupon a memorandum of the day, hour, and minute, when he received it. 2 R. S. 364, § 10 (2 Edm. 377). 1364. The different kinds of execution. There are four kinds of execution, as follows: 1. Against property. 2. Against the person. 3. For the delivery of the possession of real property with or without damages for withholding the same. 4. For the delivery of the possession of a chattel, with or vithout damages for the taking or detention thereof. An execution is the process of the court, from which it is isued. Co. Proc., § 286, am'd. See § 1240. 1365. To what counties executions may issue. An execution against property can be issued only to a county, in the clerk's office of which the judgment is docketed. An execuion against the person may be issued to any county. An excution for the delivery of the possession of real property. must be issued to the county, where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county, where the chatel is found; or to the sheriff of the county where the judgmet-roll is filed. Executions, upon the same judgment, may be issued at the same time, to two or more different counties. Salstitute for Co. Proc., part of § 287. See ante, § 597. 366. General requisites of executions. Ar execution must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court in which, the judgment was rendered; and, if it was rendered in the supreme court, the county in which the udgment-roll is filed. It must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof. Excet as otherwise prescribed in the next section, it must be made returnable to the clerk, with whom the judgment-roll is iled. Co. 'roe., part of § 289, consolidated with id., § 290. See §§ 23, 24. 137. Id.; when issued on filing transcript from justice's court etc. Whre an execution is issued out of a court. other than that in whch the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court, it must also specify the clerk, with whom the transcript is filed, and the time of filing; and it must be made returnable to that clerk. If the judgment was rendered in a justice's court, it must specify the justice's name; and it must omit the specification, respecting the filing of the judgment-roll. See post, § 3043. § 1368. Requisites of execution for the collection money. of An execution, issued upon a judgment for a sum of money, or directing the payment of a sum of money, must specify, in the body thereof, the sum recovered, or directed to be paid, and the sum actually due when it is issued. It may specify a day, from which interest upon the sum due is to be computed; in which case, the sheriff must collect interest accordingly, until the sum is paid. If all the parties, against whom the judgment is rendered, are not judgment debtors, the execution must show who is the judgment debtor. 2 R. S. 364, § 9, as am'd by L. 1844, ch. 324; and Co. Proc., part of § 289. § 1369. Id.; against property. An execution against property must, if the judgment-roll is not filed in the clerk's office of the county to which it is issued. specify the time when the judgment was docketed in that county. It must, except in a case where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment, out of the personal property of the judgment debtor; and, if sufficient personal property cannot be found, out of the real property, belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter. Co. Proc., part of § 289, am'd. 1370. Id.; where a warrant of attachment has been levied by sheriff. Where a warrant of attachment, issued in the action, has been levied by the sheriff, the execution must substantially require the sheriff to satisfy the judgment, as follows: 1. Where the judgment debtor is a non-resident, or a foreign corporation, and the summons was served upon him or it, without the State, or otherwise than personally, pursuant to an arder obtained for that purpose, as prescribed in chapter fifth of this act, and the judgment debtor has not appeared in the action: out of the personal property attached, and, if that is insufficient. out of the real property attached. 2. In any other case, out of the personal property attached: and, if that is insufficient, out of the other personal propery of the judgment debtor; if both are insufficient, out of the real property attached; and, if that is insufficient, out of the real property, belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter. See §§ 649, 707 and 708, ante. § 1371. Id.; against executor, etc. An execution against real or personal property, in the hands of an executor, administrator, heir, devisee, legatee, tenint of real property, or trustee, must substantially require the sheriff to satisfy the judgment, out of that property. Co. Proc., § 289, subd. 1. 1372. Id.; against the person. An execution against the person must substantially require the sheriff, to arrest the judgment debtor, and commit him to the jail of the county, until he pays the judgment, or is discharged according to law. Except where it may be issued, without the previous issuing and return of an execution against property, it must recite the issuing and return of such an execution, specifying the county to which it was issued. Id., 289, subd. 3, am'd. See § 1489. 1373. Id.; for delivery of property. How money, recovered by same judgment, may be collected. An execution for the delivery of the possession of real property, or a chattel, must particularly describe the property, and designate the party to whom the judgment awards the possession thereof; and it must substantially require the sheriff, to deliver the possession of the property, within his county, to the party entitled thereto. If a sum of money is awarded by the same judgment, it may be collected, by virtue of the same execution; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must contain, with respect to the money to be collected, the same directions as an execution against property, or against the person, as the case requires. Substitute for Co. Proc., § 289, subd. 4. 1374. Separate Awarded. executions, where separate sums Where a judgment awards different sums of money, to or against different parties, a separate execution may be issued, to collect each sum so awarded; subject to the power of the court, to control the enforcement of the executions, upon motion, where the collection of one execution will, wholly or partly, satisfy another. 1375. Execution of course, within five years. Except as otherwise specially prescribed by law, the party recovering a final judgment, or his assignee, may have execution thereupon, of course, at any time within five years after the entry of the judgment. Ca Proc., 283, am'd. See § 1382, 1858. § 1876. [Am'd, 1885, 1887.] Execution after death of judgment creditor. Where the party recovering a final judgment has died, execution may be issued at any time within five years after the entry of the judgment, by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed with the name and residence of the person issuing the same. And where a party or one or more of several parties against whom a judgment for the recovery of possession of real property has been obtained has died, an order granting leave to issue and execute such execution or writ of possession may be granted upon giving twenty days' notice to the occupants of the lands so recovered and to the grantees or devisees of said deceased, or if he died intestate, to the heirs at law of said deceased, said notices to be served in the same manner as a summons is directed to be served in an action in the supreme court. L. 1887, ch. 682. § 1377. When execution may be issued after five years. After the lapse of five years from the entry of a final judgment, execution can be isssued thereupon, in one of the following cases only: 1. [Am'd, 1879.] Where an execution was issued thereupon, within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted. 2. Where an order is made by the court, granting leave to issue the execution. Co. Proc., part of § 284. § 1378. Id.; leave, how obtained. Notice of an application for an order, granting leave to issue an execution, as prescribed in the last section, must be served personally upon the adverse party, if he is a resident of the State, and personal service can, with reasonable diligence, be made upon him therein; otherwise, notice must be given in such manner as the court directs. Where the judgment is for a sum of money, or directs the payment of a sum of money, leave shall not be granted, except on proof, by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied. Id., am'd. 1379. No execution against decedent, except, etc. An execution to collect a sum of money cannot be issued, against the property of a judgment debtor, who has died since the entry of the judgment except as prescribed in the next two sections. § 1380. [Am'd, 1894.] Execution against decedent's property. After the expiration of one year from the death of a party, against whom a final judgment for a sum of money, or directing the payment of a sum of money is rendered, the judgment may be enforced by execution against any property upon which it is a lien with like effect as if the judgment debtor was still living. But such an execution shall not be issued, unless an order granting leave to issue it is procured from the court from which the exe cution is to be issued, and a decree to the same effect is procured from a surrogate's court of this State, which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment debtor. Where the lien of the judg ment was created as prescribed in section twelve hundred and fifty-one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the decedent's death continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from |