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faith is selling it under the conditions of the mortgage in payment of the mortgage debt, is not subject to levy on execution against the mortgagor.21

§ 1594. Property in custodia legis

Property taken from an officer under a writ of replevin, and returned to him under a redelivery bond, is in custodia legis, and the sale of it under an execution issued after the property is so taken and pending the replevin proceedings will be enjoined.22

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"Executions shall be deemed process of the court, and shall be is sued by the clerk, and directed to the sheriff of the county. They may be directed to different counties at the same time." 23

Except as otherwise provided by statute, an execution can issue only from the court in which the judgment was rendered.24

21 Anderson v. Montgomery County Nat. Bank, 67 P. 1110, 64 Kan. 587. 22 Overton v. Warner, 74 P. 651, 68 Kan. 96.

23 Rev. Laws 1910, § 5149.

24 Garnett v. Goldman, 39 Okl. 516, 135 P. 410.

Where a transcript of a probate (county) court judgment has been filed in the district court of the same county, the clerk of the latter court prior to the adoption of Rev. Laws of 1910, had no authority to issue execution thereon but section 5148, Rev. Laws 1910, expressly permits executions to be issued from the Court in which a transcript of a county court judgment is first filed. Garnett v. Goldman, 39 Okl. 516, 135 P. 410.

On abstract or transcript of justice

§ 1596. Execution may be issued on abstract of transcript of a judgment of a justice of the peace, "to the sheriff, by the clerk of the district court, in the same manner as if the judgment had been taken in that court; and the sheriff shall execute and return the same, as other executions; and in case of sale of real estate, his proceedings shall be examined and approved by the court as in other cases."

§ 1597.

To sheriff of another county

"25

"When an execution is issued to the sheriff of any county other than that in which the judgment was rendered, the sheriff, after indorsing the date of its reception thereon, shall deliver the same to the clerk of the district court of his county, who shall thereupon enter the same in the execution docket in the same manner as if it had issued from the court of which he is clerk; and before the sheriff shall return any such writ, he shall cause his return to be entered in like manner." 26

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A sale of real estate, made under a special execution issued on judgment of foreclosure, after the death of the plaintiff in the decree, without a revivor of the judgment, is void.27

An execution on a judgment revived, after the death of the defendant, against his executors, who hold title to lands under his will, can only be levied on the property bound by the lien of the judgment. It cannot be levied on personal property which passed into the hands of the executors, nor on lands to which the lien did not attach.2

28

1599. Time

"If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered, in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on

25 Rev. Laws 1910, § 5219.

20 Rev. Laws 1910, § 5183.

27 Seeley v. Johnson, 59 P. 631, 61 Kan. 337, 78 Am. St. Rep. 314.

28 Mendenhall v. Burnette, 49 P. 93, 58 Kan. 355.

the estate of the judgment debtor: Provided, that this section shall not apply to judgments against municipalities."

$1600. Contents-Forms

"29

"The writ of execution against the property of the judgment debtor, issuing from any court of record in this State, shall command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor; and the amount of the debt, damages and costs, for which the judgment is entered, shall be endorsed on the execution." 30

(Caption.)

EXECUTION

The State of Oklahoma to the Sheriff of

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on the

Whereas, day of judgment in the district court of the county of lahoma, against - for the principal sum of together with interest accruing at the rate of annum from the writ, and for the sum of

of

day of

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County-Greeting: -, 19, obtained a state of Okdollars debt,

per cent. per

19, to date of service of this

dollars attorney fee, and for the sum dollars cost, and there has accrued in this court

costs, and the clerk's accruing costs, about

$

-:

dollars;

And whereas, there has been paid on this judgment the sum of and interest, and an attorney fee, $ Now, therefore, you are hereby commanded that of the goods and chattels of the said you cause to be made the money speci fied, and for want of goods and chattels you cause the same to be made of the lands and tenements of said debtor, and make return of this execution, showing how you executed the same, within sixty days from the date thereof.

In witness whereof, I have hereunto set my hand and affixed the seal of said court, at my office in in said county, this

day of

-, A. D. 19-.

Court Clerk,
By, Deputy.

29 Rev. Laws 1910, § 5153. 30 Rev. Laws 1910, § 5154.

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day of

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-, 19, and aft-, 19—, the said plain

cost of suit, with interest on said judgment at the rate of per cent. per annum, from the

tiff duly filed a transcript of said judgment in the above entitled court; and

Whereas, there remains unpaid on said judgment the sum of dollars, with interest on the sum of

rate of

per cent. per annum from the

dollars:

19, and costs, amounting to

amounting to

dollars, at the day of

dollars, and accruing costs

Now, therefore, you are hereby commanded that of the goods and chattels of the said you cause the money above specified to be made, and for want of goods and chattels you cause the same to be made of the lands and tenements of said —, and make due return of this execution, with your certificate thereon showing the manner in which you have executed the same, within sixty days. from the date hereof.

Witness my hand and the seal of said court this

day of

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Sheriff's Office,

County, State of Oklahoma.

Received this writ this

o'clock

day of, A. D. 19-, at

m. According to the command of the within writ,

day of

A. D. 19, I did

of

finding no goods or chattels belonging to the within named defendant whereon to levy on the forthwith levy said writ upon the following described said debtor, situated in

wit:

county, and state of Oklahoma, to , which were liable to satisfy said judgment and did

and

cause the same to be appraised by three disinterested householders residing within said county wherein said lands are situated, and administer to them an oath impartially to appraise said property levied upon, upon actual view. And said householders did forthwith return to me, under three disinterested householders residing within said county wherein said lands are situated and administer to them an oath with the clerk of said district court from whence the execution issued, and did cause public notice of the time and place of sale of said to be given over days before the day of sale thereof, by advertisement in the a newspaper printed in and of general circulation in county, state of Oklahoma. A copy of said notice with the printer's affidavit is hereto attached and made part of this return.

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county, state of Oklahoma, the time and place stated in said notice, at public action, to the highest and best bidder for cash in hand.

Sold the following

for the sum of $

to wit: for cash in hand to -, he being the highest and best bidder for said property, and that being the highest and best price bid for the same. Said purchase money I

Dated this

day of

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§ 1601. Amount

The mere fact that an execution issues for more than is due on the

judgment does not deprive the writ of validity; but, the court may, on application, set it aside to the extent of the excess.31

31 Bogle v. Bloom, 13 P. 793, 36 Kan. 512.

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