§ 1602. Alias writ Lands levied upon under one execution, and advertised for sale for a time beyond the return day of the writ, may be sold as advertised upon a second or alias writ, issued under circumstances and containing recitals which show that it was procured under the authority of the statute, which provides that, "if lands levied on are not sold upon one execution, other executions may be issued to sell the property so levied on" for the purpose of authorizing the sale under the previous levy and advertisement.82 § 1603. Seal An execution issued out of the district court, without the use of the seal of said court, is a nullity.33 § 1604. Amendment An execution for the sale of property, authenticated with the seal of the court, but lacking the signature of the clerk issuing it, may be amended after its return by order of court upon the clerk to sign it, if necessary to validate proceedings under it.34 Where an execution was directed to the sheriff of a county on the judgment of the district court of that county, but delivered to and executed by the sheriff of another county, to whom it should have been directed, the defect was simply an irregularity, subject to amendment, and did not make the writ or the proceedings thereunder void.35 § 1605. Collateral attack An execution is not void, and subject to collateral attack, because of formal defects or omissions in the indorsements or description of the judgment. 32 First Nat. Bank v. Farmers' Nat. Bank, 60 P. 324, 61 Kan. 620; Gen. St. Kan. 1897, c. 95, § 468. 33 Frankhouser v. De Witt, 58 P. 1027, 9 Kan. App. 636. 34 Taylor v. Buck, 60 P. 736, 61 Kan. 694, 78 Am. St. Rep. 346. 35 Christy v. Springs, 69 P. 864, 11 Okl. 710. 36 Failure to indorse amount of judgment and costs on back of execution showing same upon its face does not render execution void and subject to collateral attack by third party. An execution issued on a judgment in favor of partnership only in partnership name, on præcipe signed by one of two partners who when execution issued, was sole owner of judgment, which præcipe erroneously described judgment as if in his favor, but otherwise identified it, was not void nor subject to collateral attack. An 1612. 1613. 1614. 1615. Ministers' libraries. Motor vehicles-Claiming exemptions-damages. Order to appear-Forms. Priorities between executions. 1616. Attachments and executions-Who may levy, 1617. Void when otherwise levied. 1633. Duration of lien on realty. 1634. Claims of third persons-Bond-Form. § 1606. Enforcement-Exemptions "The judge may order any property of the judgment debtor, not exempt by law, in the hands either of himself or any other person or corporation, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, and may enforce the same by proceedings for contempt in case of refusal or disobedience; but the earnings of the debtor for his personal services, at any time within three months next preceding the order, cannot be so applied, execution bearing return of officers to whom it was issued and found among the files of the papers of the case in which it was issued is not void and subject to collateral attack, because the fact of its filing is not indorsed thereon. Kale v. Humphrey, 170 P. 223. when it is made to appear, by the debtor's affidavit or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor." 37 "The earnings of a debtor, who is a resident of this State, for his personal services at any time within three months next preceding the issuing of an execution, attachment or garnishment process, cannot be applied to the payment of his debts when it is made to appear by the debtor's affidavit or otherwise that such earnings are necessary for the maintenance of a family supported wholly or partly by his labor: Provided, that at the time of filing such affidavit the debtor shall notify the plaintiff or his agent or attorneys thereof in writing: Provided further, that nothing herein contained shall prevent the adverse party from controverting the matters sought to be proven by such affidavit, by counter affidavit, or if sought to be proven in any other manner the same may be controverted by any competent evidence; and, provided further, that such counter affidavit shall be filed within twenty-four hours after the notice of the filing of the said debtor's affidavit, and final hearing shall be had thereon at a time to be fixed by the court, within ten days from the notice of the filing of the debtor's affidavit, if pending in the justice's court, and if pending in the district, superior or county court, it shall be tried at the first term held after filing such affidavit." 38 "The following property shall be reversed to the head of every family residing in the state exempt from attachment or execution. and every other species of forced sale for the payment of debts, except as hereinafter provided: "First. The homestead of the family, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife. "Second. All the household and kitchen furniture. "Third. Any lot or lots in a cemetery held for the purpose of sepulture. "Fourth. All implements of husbandry used upon the homestead. "Fifth. All tools, apparatus and books belonging to and used in any trade or profession. 37 Rev. Laws 1910, § 5198. 38 Rev. Laws 1910, § 5199. "Sixth. The family library and all family portraits and pictures and wearing apparel. "Seventh. Five milch cows and their calves under six months old. "Eighth. One yoke of work oxen with necessary yokes and chains. "Ninth. Two horses or two mules, and one wagon, cart or dray. "Tenth. One carriage or buggy. "Eleventh. One gun. "Twelfth. Ten hogs. "Thirteenth. Twenty head of sheep. "Fourteenth. All saddles, bridles and harness necessary for the use of the family. "Fifteenth. All provisions and forage on hand, or growing for home consumption, and for the use of exempt stock for one year." "39 Sixteenth. "Seventy-five per cent. of all current wages or earnings for personal or professional services earned during the last ninety days." 40 "The following property shall be reserved to persons who are not heads of a family, exempt from attachment, execution and every other species of forced sale, except for liens given by the owners: "First. A lot or lots in a cemetery held for the purpose of a sepulcher. "Second. All wearing apparel. "Third. All tools, apparatus and books belonging to any trade. or profession. "Fourth. One horse, bridle and saddle, or one yoke of oxen." 41 Fifth. "Seventy-five per cent. of all current wages or earnings for personal or professional services: Provided, however, that no process issued in any court to subject such wages or earnings for personal services to satisfy any judgment or obligation, shall ever include more than twenty-five per cent of such wages, or personal earnings, and any person, firm, association or corporation either 39 Rev. Laws 1910, § 3342. 40 Sess. Laws 1915, p. 385, § 1, amending sixteenth clause of Rev. Laws 1910, § 3342. 41 Rev. Laws 1910, § 3345. personally or by agent or attorney violating any provision of this act shall forfeit the entire debt, judgment or obligation sought to be satisfied, and no court in the state of Oklahoma shall ever have jurisdiction to enforce collection of any such claim, judgment or obligation in any case in which the provisions of this act have been violated." 42 Under the rule that a debtor is excused by unavoidable accident in failing to make a claim for exemptions, an "accident" is an event which is unusual and unexpected, or the happening of an event without the concurrence of the will of the person by whose agency it was caused.48 § 1607. 43 Homestead exemption "The homestead of any family in this state, not within any city or town, shall consist of not more than one hundred and sixty acres of land, which may be in one or more parcels, to be selected by the owner. The homestead within any city or town, owned and occupied as a residence only, shall consist of not exceeding one acre of land, to be selected by the owner: Provided, that the same shall not exceed in value the sum of five thousand dollars, and in no event shall the homestead be reduced to less than one-quarter of an acre, without regard to value; and provided, further, that in case said homestead is used for both residence and business purposes, the homestead interests therein shall not exceed in value the sum of five thousand dollars: Provided, that nothing in the laws of the United States, or any treaties with the Indian tribes in the state, shall deprive any Indian or other allottee of the benefit of the homestead and exemption laws of the state; and provided, further, that any temporary renting of the homestead shall not change the character. of the same, when no other homestead has been acquired." 44 "The exemption of the homestead provided for in this chapter shall not apply where the debt is due: "First. For the purchase money of such homestead or a part of such purchase money. "Second. For taxes or other legal assessments due thereon. 42 Sess. Laws 1915, p. 385, § 1, amending fifth clause of Rev. Laws 1910, § 3345. 43 Hocker v. Carroll, 129 P. 56, 35 Okl. 290. 44 Rev. Laws 1910, § 3343. HON.PL.& PRAC.-96 (1521) |