Title seven of the Practice Act is entitled: " Of the execution of the Judgment in Civil Actions; " and chapter one is entitled: " The Execution." The first section of that chapter (sec. 209 Practice Act) provides, that " the party in whose favor judgment is given may, at any time within five years after the entry thereof, issue a writ of execution for its enforcement, as prescribed in this chapter."
It follows, that no such writ can be issued after the lapse of five years from the giving of the judgment; and that no other way has been prescribed in which judgment can be enforced than that provided in this chapter. By Practice Act (Title 1, Sec. 1): " There shall be in this State but one form of civil actions," etc., and the rules governing such action--whether equitable or legal--from the commencement of the action to the enforcement of the judgment, are to be found in the Practice Act, and to be strictly followed.
The term " execution" in sec. 209 of the Practice Act is there used in its broadest sense, meaning the process by which the judgment is to be executed. Blackstone (vol. 3, ch. 26) defines the " execution" of the judgment as " putting the sentence of the law in force." " This," he says, " is performed in different manners, according to the nature of the action upon which it is founded, and of the judgment which is had or recovered." Whatever process, therefore, is used to enforce the judgment is the " execution" --varying, of course, according to the nature of the judgment--and the different modes of doing this are prescribed in Title VII., Ch. 1, Sec. 213, all under the title of " Executions." Whichever of these modes is made use of, according to the nature of the judgment, is the " execution for its enforcement," and can only issue within five years after the entry of that judgment.
JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
CROCKER, Judge
This is an action brought by a judgment defendant to enjoin all proceedings upon an execution issued on the judgment. On the eighth day of June, 1852, Falconer & Moulton obtained a decree in the usual form for the foreclosure of a certain mortgage, and the sale of the mortgaged premises, against the plaintiff, Stout, and others. The decree stated the amount due to the plaintiffs, and directed that the mortgaged premises be sold, that the amount due be paid from the proceeds of the sale, and that, if the same were insufficient, execution issue against the defendant, Stout, for the balance. This judgment was purchased by and assigned to the defendant's testator, but no execution to enforce the decree was ever issued until a short time before the commencement of this suit, in May, 1862. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action; the demurrer was overruled, and no answer having been filed, a final judgment was rendered for the plaintiff, enjoining all proceedings to enforce the judgment or execution, and the defendant appeals.
The principal question is, whether an execution can issue after the lapse of five years from the entry of a judgment rendered in an action to foreclose a mortgage. A judgment for the foreclosure of a mortgage and the sale of the mortgaged premises is governed by the same rules as other judgments, both as respects the Statute of Limitations of actions thereon, and the time within which execution for their enforcement can be issued. The Practice Act makes no distinction between judgments of that kind and others of a different character. All are treated alike. This Court has held that sales under executions issued on such judgments are subject to redemption, as in other cases. (Kent v. Laffan , 2 Cal. 595; McMillan v. Richards , 9 Id. 365; Guy v. Middleton , 5 Id. 392; Harlan v. Smith , 6 Id. 173.) Thus the principle that judgments for the foreclosure of mortgages are governed by the same rules as other judgments has been recognized by this Court. Sec. 209 of the Practice Act limits the time within which an execution can issue for the enforcement of a judgment to five years from the entry of the judgment, and this applies to judgments of this kind the same as others. Sec. 214 allowed executions to issue after that date by a special order of Court, but that section was repealed in 1861, and that right, therefore, no longer exists. The defendant in this case had lost his right to an execution to enforce the judgment by the lapse of time, and the Court below properly rendered judgment against him.
The judgment is therefore affirmed.