§ 1666. Lien on funds

Service on a judgment defendant of a notice to appear in supplementary proceedings, no order being made forbidding the transfer of his property, does not give plaintiff a lien on the funds held by the defendant, nor prevent the defendant from withdrawing such funds from the reach of his creditors by investing them in a homestead." 48

§ 1667. Fees and costs

"The judge shall allow to clerks, sheriffs, referees, receivers and witnesses such compensation as is allowed for like services in other cases, to be taxed as costs in the case, and shall enforce, by order, the collection thereof, from such party or parties as ought to pay the same." 49

"The clerk shall be allowed such fees for services under this head as are allowed for similar services in other cases.'

§ 1668. Contempt

"If any person, party or witness disobey an order of the judge or referee, duly served, such person, party or witness may be punished by the judge, as for a contempt." "1

A judgment debtor may be committed for contempt for willfully disobeying an order in proceedings in aid of execution requiring him to apply property in his possession not exempt to the satisfaction of the judgment."2

48 McConnell v. Wolcott, 78 P. 848, 70 Kan, 375, 3 L. R. A. (N. S.) 122, 109 Am. St. Rep. 454.

49 Rev. Laws 1910, § 5209.

50 Rev. Laws 1910, § 5210.

51 Rev. Laws 1910, § 5207.

52 State v. Burrows, 5 P. 449, 33 Kan. 10; In re Burrows, 7 P. 148, 33 Kan. 675.

In contempt proceedings against a judgment debtor, who was shown to have money under his actual control not exempt by law, and which he refused to apply to the satisfaction of the judgment, the judge may commit him to the county jail until the judgment and the cost of the contempt proceedings are satisfied. In re Burrows, 7 P. 148, 33 Kan. 675.

A person cited for contempt for failure to pay money found by the district court on examination in supplementary proceedings, to belong to the judgment debtor, cannot excuse a disobedience of the order by asserting that the money withheld does not belong to such debtor. Such showing should have been made at the original examination. In re Lewis, 72 P. 788, 67 Kan. 340. In proceedings in aid of execution the court made a general finding that the

§ 1669. Orders

"The orders mentioned in the foregoing sections shall be in writing, and signed by the judge making the same, and shall be served as a summons in other cases. The judge shall reduce all his orders to writing, which, together with a minute of his proceedings, signed by himself, shall be filed with the clerk of the court of the county in which the judgment is rendered, or the transcript of the justice filed, and the clerk shall enter on his execution docket the time of filing the same." 53

A third person subpoenaed as a witness in supplementary proceedings, who gives testimony, but is not made a party and did not intervene to claim the property, is not bound by the order of the judge, and may in an appropriate action litigate his rights to such property.54

In proceedings supplemental to execution, the court is not authorized to direct a judgment debtor to apply to the payment of a judgment property the title to which is in a third party, but only property which the debtor has power to deliver.55

§ 1670. Judgment enforced after death

"When any judgment has been rendered for or against the testator or intestate in his lifetime, no execution shall issue thereon after his death, except:

"First. In case of the death of the judgment creditor, upon the application of his executor or administrator, or successor in inter

ests.

"Second. In case of the death of the judgment debtor, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon.

"A judgment against the decedent for the recovery of money, judgment debtor had money and property in his possession and under his control which he unjustly refused to apply to the payment of his debts, and ordered his imprisonment until he make full satisfaction of the judgment. Held, on habeas corpus, that it was necessary that the order state the amount of money and describe the property under his control, otherwise it would not appear that he had wherewith to satisfy the judgment, and that the order should first direct payment, and only after refusal should the commitment be made. In re O'Connell, 30 P. 456, 49 Kan. 415.

53 Rev. Laws 1910, § 5208.

54 Honce v. Schram, 85 P. 535, 73 Kan. 368.

55 Ryland v. Arkansas City Milling Co., 92 P. 160, 19 Okl. 435.

must be presented to the executor or administrator, like any other claim. If the execution is actually levied upon any property of the decedent before his death, the same may be sold for the satisfaction thereof, and the officer making the sale must account to the executor or administrator for any surplus in his hands." 56

ARTICLE VIII

WRONGFUL EXECUTION

Sections

1671. Conversion-Damages.

§ 1671. Conversion-Damages

Where goods belonging to the plaintiff are taken and sold under a void judgment and writ of attachment, the purchaser at the sale is liable in conversion, especially where the purchaser is the plaintiff in the attachment proceedings.5

57

Where a party causes an execution to be issued on a void judgment and causes the officer to whom it is delivered to seize the property of one not a party to the suit in which the judgment is rendered, the officer thereby becomes the agent of such party, and the party is liable for compensatory damages to the person injured thereby.5

58

In an action against a judgment creditor to recover damages for land sold under a judgment obtained by publication, where the judgment is afterwards vacated, the measure of damages is the value of the land when the bona fide purchaser acquires a sheriff's deed.50

56 Rev. Laws 1910, § 6351.

57 Bilby v. Jones, 136 P. 414, 39 Okl. 613.

58 Duff & Repp Furniture Co. v. Read, SS P. 263, 74 Kan. 730.

59 Erath v. Glenn, 129 P. 830, 89 Kan. 55.

1579)

§ 1672. Judgment or order-Forms

In the case of a "judicial sale," as distinguished from a sale by virtue of a general execution, the court actually or presumptively adjudicates every matter essential to the propriety and validity of the sale decree.1

The order must run in the name of the state and be under the seal of the court.2

1 Brewer v. Warner, 105 Kan. 168, 182 P. 411, 5 A. L. R. 385.

2 Order of sale on decree of foreclosure not running in the name of the state to the sheriff is void. Martin v. Hostetter, 59 Okl. 246, 158 P. 1174. Order of sale under decree of foreclosure not running in name of state of Oklahoma to the sheriff cannot be amended after sale to cure defect. Id.

The provision of Const. art. 3, § 1, that "all courts of record shall have a seal to be used in the authentication of all process," is mandatory; and an order of sale issued without the seal of the court is void, and the court has no power, after a sale made thereunder, to allow the process to be amended by attaching the seal. Gordon v. Bodwell, 51 P. 906, 59 Kan. 51, 68 Am.

St. Rep. 341.

and sum of

day of

County Greeting:

19, obtained a

day of

county, state of Oklahoma, dollars, together with inter

per centum per annum, from the dollars, costs,

19, and the sum of

dollars accrued costs, and clerk's costs accruing in the dollars; and whereas, there has been paid on said dollars, and there remains unpaid the

judgment the sum of

dollars, with interest on the sum of

sum of from the

dollars,

day of, 19—, at said rate aforesaid, and said costs and accruing costs; and whereas, by the judgment of said court the following described property was charged with the payment of said judgment, to wit:

:

Now, therefore, you are hereby commanded to cause the said property above described to be advertised and sold without appraisement according to law. And make return of this order of sale, showing the manner in which you have executed the same, within sixty days from the date hereof.

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

day of

Where a mortgage contains the provision "and waive the appraisement," a provision in the order of sale "according to the provisions of law relating to the sale of real estate under execution" means that the premises shall be sold "without appraisement." 3

3 Owens v. Culbertson (Okl.) 164 P. 975.