1862 Territory of Dakota Session Laws/Chapter 8/Title XIV
TITLE XIV
EXECUTIONS.
Executions, how issued and directed.Sect. 430. Executions shall be deemed process of the court, and shall be issued by the clerk and directed to the sheriff of the county. They may be directed to different counties at the same time.
Kinds of executions.Sect. 431. Executions are of three kinds: 1. Against the property of the judgment debtor. 2. For the delivery of the possession of real property, with damages for withholding the same, and costs.
CHAPTER I.—Executions against the Property of the Judgment Debtor.
Executions against property of judgement debtor.Sect. 432. Lands, tenements, goods, and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution, and sold as hereinafter provided.
Lands, goods, and chattels bound from time of seizure.Sect. 433. All lands, as well as goods and chattels of the debtor, not exempt by law from levy, seizure, and sale under an execution, shall be bound from the time they shall be seized in execution.
Execution must be sued out within five years.Sect. 434. 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 territory; or if five years shall have intervened between the date of the last execution issued on such judgment and the time of sueing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.
Contents of the writ of execution.Sect. 435. The writ of execution against the property of the judgment debtor, issuing from any court of record in this territory, 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 exact amount of the debt, damages, and costs, for which the judgment is entered, shall be indorsed on the execution.
When two or more writs against same debtor shall be delivered to officer at or about same day, &c.Sect. 436. When two or more writs of execution against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor shall be delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands. In all other cases the writ of execution first delivered to the officer shall be first satisfied. And it shall be the duty of the officer to indorse on every writ of execution the time when he received the same. No judgment shall be a lien upon the lands, goods, or chattels of a judgment debtor, until said lands, goods, or chattels shall be levied upon or seized in execution.
In what order property shall be levied upon.Sect. 437. The officer to whom a writ of execution is delivered, shall proceed immediately to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found, the officer shall indorse on the writ of execution, "no goods," and forthwith levy the writ of execution upon the lands and tenements of the debtor, which may be liable to satisfy the judgment.
If officer levies upon property claimed by other than defendant, jury of disinterested men to be summoned, &c.Sect. 438. If the officer, by virtue of any writ of execution, issued from any court of record in this territory, shall levy the same on any goods and chattels claimed by any person other than the defendant, it shall be the duty of said officer forthwith to give notice in writing to some justice of the peace in the county, in which shall be set forth the names of the plaintiff and defendant, together with the name of the claimant; and at the same time he shall furnish the said justice of the peace with a schedule of the property claimed. And it shall be the duty of such justice of the peace, immediately upon the receipt of such notice and schedule, to make an entry of the same upon his docket, and issue a writ of summons, directed to the sheriff, or any constable of the county, commanding him to summon five disinterested men, having the qualifications of electors, who shall be named in said summons, to appear before him, the said justice, at the time and place therein mentioned, which time shall not be more than three days after the date of said writ, to try and determine the right of the claimant to the property in controversy. And it shall be the duty of the claimant to give two days' notice, in writing, to the plaintiff or other party for whose benefit such execution was issued and levied as aforesaid, his agent or attorney, if within the county, of the time and place of such trial; and he shall, moreover, prove to the satisfaction of said justice that such notice was given, or that the same could not be given by reason of the absence of the party, his agent or attorney.
Jury to be sworn, and their duties.Sect. 439. The jury summoned as aforesaid, shall be sworn to try and determine the right of the claimant to the property in controversy, and a true verdict to give, according to the evidence. If the jury shall find the right to said goods and chattels, or any part thereof, to be in the claimant, they shall also find the value thereof, and the justice shall render judgment upon such finding of the jury, for the claimant, that he recover his costs against the plaintiff in execution, or other party to the same, for whose benefit the execution issued, and also that he have restitution of said goods and chattels, or any part thereof, according to the finding of the jury. But if the right of the said goods and chattels, and every part thereof, shall not be in the claimant according to the finding of said jury, then the said justice shall render judgment on such finding, in favor of the plaintiff in execution, or other party for whose benefit the same was issued and levied, against said claimant for costs, and award execution thereon. Such justice of the peace, in the taxation of costs accruing by reason of such claim and trial, shall allow each juror summoned and sworn, the sum of fifty cents; and for the sheriff, constable, or other officer, and witnesses, and for himself, he shall tax such fees as are allowed by law, to each, respectively, for like services rendered in other cases. Such judgment for the claimant (unless an undertaking shall be executed, as provided in the next section), shall be a justification of the officer in returning "no goods" to the writ of execution, by virtue of which the levy has been made, as to such part of the goods and chattels as were found to belong to such claimant.
Their duties.Sect. 440. If the jury shall find the property or any part thereof to be in the claimant, and the plaintiff in execution shall, at any time within three days after such trial, tender to the sheriff or other officer having such property in his custody on execution, an undertaking with good and sufficient sureties, payable to such claimant, in double the amount of the value of such property as assessed by the jury, to the effect that they will pay all damages sustained by reason of the detention or sale of such property, then the sheriff or other officer shall deliver said undertaking to claimant, and proceed to sell such property, as if no such trial of the right of property had taken place, and shall not be liable to the claimant therefor.
In case goods and chattels remain unsold.Sect. 441. In all cases where a sheriff, coroner, or other officer shall, by virtue of an execution, levy upon any goods and chattels, which shall remain upon his hands unsold, for want of bidders, for the want of time to advertise and sell, or any other reasonable cause, the officer may, for his own security, take of the defendant an undertaking, with security in such sum as he may deem sufficient, to the effect that the said property shall be delivered to the officer holding an execution for the sale of the same, at the time and place appointed by said officer, either by notice given in writing to said defendant in execution, or by advertisement, published in a newspaper printed in the county, naming therein the day and place of sale. If the defendant shall fail to deliver the goods and chattels at the time and place mentioned in the notice to him given, or to pay to the officer holding the execution the full value of said goods and chattels, or the amount of said debt and costs, the undertaking, given as aforesaid, shall be considered as broken, and may be proceeded on as in other cases.
Officer to give notice of sale. Style of notice.Sect. 442. The officer who levies upon goods and chattels, by virtue of an execution issued by a court of record, before he proceeds to sell the same, shall cause public notice to be given of the time and place of sale, for at least ten days before the day of sale. The notice shall be given by advertisement, published in some newspaper printed in the county, or, in case no newspaper be printed therein, by setting up advertisements in five public places in the county; two advertisements shall be put up in the precinct where the sale is to be held. And where goods and chattels levied upon cannot be sold for want of bidders, the officer making such return shall annex to the execution a true and perfect inventory of such goods and chattels; and the plaintiff in such execution may thereupon sue out another writ of execution directing the sale of the property levied upon as aforesaid; but such goods and chattels shall not be sold, unless the time and place of sale be advertised, as hereinbefore provided.
If property unsold be deemed insufficient to satisfy judgement.Sect. 443. When any writ shall issue, directing the sale of property previously taken in execution, the officer issuing said writ shall, at the request of the person entitled to the benefit thereof, his agent or attorney, add thereto a command to the officer to whom such writ shall be directed, that, if the property remaining in his hands, not sold, shall, in his opinion, be insufficient to satisfy the judgment, he shall levy the same upon the lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt.
If execution levied upon lands and tenements, the same shall be appraised, how.Sect. 444. If execution be levied on lands and tenements, the officer levying such execution shall call an inquest of three disinterested freeholders, who shall be resident within the county where the lands taken in execution are situate, and administer to them an oath, impartially to appraise the property so levied upon, upon actual view; and such freeholders shall forthwith return to the said officer, under their hands, an estimate of the real value, in money, of said property.
A copy of their return deposited with clerk of court.Sect. 445. The officer receiving such return shall forthwith deposit a copy thereof with the clerk of the court from which the writ issued, and immediately advertise and sell such real estate, agreeably to the provisions of this title.
If two thirds of appraised value sufficient to satisfy execution.Sect. 446. If, upon such return, as aforesaid, it appear, by the inquisition, that two thirds of the appraised value of said lands and tenements so levied upon is sufficient to satisfy the execution, with costs, the judgment on which such execution issued shall not operate as a lien, on the residue of the debtor's estate, to the prejudice of any other judgment creditor. But no tract of land shall be sold for less than two thirds of the value returned in the inquest: Proviso.Provided, That nothing in this section contained shall in anywise extend to affect the sale of lands by the territory, but all lands therein the property of individuals, indebted to the territory for any debt or taxes, or in any other manner, shall be sold without valuation, for the discharge of such debt or taxes, agreeably to the laws for such case made and provided.
If property of certain public officers is levied upon certain accounts.Sect. 447. If the property of any clerk, sheriff, coroner, justice of the peace, constable, or any collector of territorial, county, town, or township tax, shall be levied on, for, or on account of any moneys that now are, or may hereafter be by them collected or received, in their official capacity, the property so levied on shall be sold without valuation.
Lands and tenements not to be sold without certain public notice.Sect. 448. Lands and tenements, taken in execution, shall not be sold, until the officer cause public notice of the time and place of sale to be given, for at least thirty days before the day of sale, by advertisement, in some newspaper printed in the county, or, in case no newspaper be printed in the county, in some newspaper in general circulation therein, and by putting up an advertisement upon the court house door, and in five other public places in the county, two of which shall be in the precinct where such lands and tenements lie. All sales made without such advertisement shall be set aside, on motion, by the court to which the execution is returnable.
If court is satisfied of legality of sale, a deed shall be given by officer.Sect. 449. If the court, upon the return of any writ of execution, for the satisfaction of which any lands and tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this title, the court shall direct the clerk to make an entry on the journal, that the court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed for such land and tenements; and the officer, on making such sale, may retain the purchase-money in his hands, until the court shall have examined his proceedings, as aforesaid, when he shall pay the same to the person entitled thereto, agreeable to the order of the court.
Officer shall make deed in certain form.Sect. 450. The sheriff or other officer, who, upon such writ or writs of execution, shall sell the said lands and tenements, or any part thereof, shall make to the purchaser or purchasers thereof, as good and sufficient a deed of conveyance of lands and tenements sold, as the person or persons, against whom such writ or writs of execution were issued, could have made of the same, at, or any time after they became liable to the judgment. The deed shall be sufficient evidence of the legality of such sale, and the proceedings therein, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned, as was vested in the party at or after the time when such lands and tenements became liable to the satisfaction of the judgment. And such deed of conveyance, to be made by the sheriff, or other officer, shall recite the execution or executions, or the substance thereof, and the names of the parties, the amount and date of term of rendition of such judgment, by virtue whereof the said lands and tenements were sold as aforesaid; and shall be executed, acknowledged, and recorded, as is or may be provided by law, to perfect the conveyance of real estate in other cases.
Officer may refuse to publish notice until party to be benefited advances printer's fees.Sect. 451. The officer who levies upon goods and chattels, or lands and tenements, or who is charged with the duty of selling the same by virtue of any writ or execution, may refuse to publish a notice of the sale thereof by advertisement in a newspaper, until the party for whose benefit such execution issued, his agent or attorney, shall advance to such officer so much money as will be sufficient to discharge the fees of the printer for publishing such notice.
In such case, officer shall demand the fees.Sect. 452. Before any officer shall be excused from giving the notification mentioned in the last section, he shall demand of the party for whose benefit the execution was issued, his agent or attorney (provided either of them reside in the county), the fees in said section specified.
Sales made at court house or other stated place.Sect. 453. All sales of lands or tenements under execution, shall be held at the court house, if there be one in the county in which such lands and tenements are situated, and if there be no court house, then at the door of the house in which the district court was last held. No officer making sale shall purchase property.No sheriff, or other officer, making the sale of property, either personal or real, nor any appraiser of such property, shall either directly or indirectly purchase the same; and every purchase so made, shall be considered fraudulent and void.
If lands and tenements not sold, other executions may issue.Sect. 454. If lands and tenements, levied on as aforesaid, are not sold upon one execution, other executions may be issued to sell the lands so levied upon.
In case two or more executions shall be put into hands of sheriff, and officer is required to make separate levy.Sect. 455. In all cases, when two or more executions shall be put into the hands of any sheriff, or other officer, and it shall be necessary to levy on real estate to satisfy the same, and either of the judgment creditors in whose favor one or more of said executions is issued, shall require the sheriff, or other officer, to make a separate levy to satisfy his execution or executions, it shall be the duty of the sheriff, or other officer, to levy said executions, or so many thereof as may be required, on separate parcels of real property, of the judgment debtor or debtors; giving to the officer making the levy on behalf of the creditor, whose execution may, by the provisions of this chapter, be entitled to a preference, the choice of such part of the real property of the judgment debtor or debtors, as will be sufficient, at two thirds the appraised value, to satisfy the same. And in all cases where two or more executions, which are entitled to no preference over each other, are put in the hands of the same officer, it shall be the duty of the officer when required, to levy the same on separate parcels of the real property of the judgment debtor or debtors, when in the opinion of the appraisers the same may be divided without material injury; and if the real property of said debtors will not be sufficient, at two thirds of its appraised value, to satisfy all the executions chargeable thereon, or such part of the same as shall be levied on to satify each execution, as will bear the same proportion in value to the whole, as the amount due on the execution bears to the amount of all the executions chargeable thereon, as near as may be, according to the appraised value of each separate parcel of said real property.
If term of service of officer expire, or he be absent or die before making deed.Sect. 456. If the term of service of the sheriff, or other officer, who has made, or shall hereafter make sale of any lands and tenements, shall expire; or if the sheriff or other officer shall be absent, or be rendered unable by death, or otherwise, to make a deed of conveyance of the same, any succeeding sheriff or other officer, on receiving a certificate from the court from which the execution issued for the sale of said lands and tenements, signed by the clerk, by order of said court, setting forth that sufficient proof has been made to the court, that such sale was fairly and legally made, and, on tender of the purchase-money, or if the same, or any part thereof, be paid, then, on proof of such payment and tender of the balance, if any, may execute to the said purchaser or purchasers, or his or their legal representatives, a deed of conveyance of said lands and tenements so sold. Such deed shall be as good and valid in law, and have the same effect, as if the sheriff or other officer who made sale, had executed the same.
If there be more money than is sufficient to satisfy execution.Sect. 457. If, on any sale made as aforesaid, there shall be in the hands of the sheriff or other officer, more money than is sufficient to satisfy the writ or writs of execution, with interests and costs, the sheriff or other officer shall, on demand, pay the balance to the defendant in execution, or his legal representatives.
If judgements are reversed after sale, title not to be affected.Sect. 458. If any judgment or judgments, in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers; but in such case, restitution shall be made, by the judgment creditor, of the moneys, for which such lands or tenements were sold, with lawful interest from the day of sale.
In case real estate is twice offered and not sold.Sect. 459. In all cases where real estate has been or may hereafter be taken on execution and appraised, and twice advertised and offered for sale, and shall remain unsold for want of bidders, it shall be the duty of the court from which such execution issued, on motion of the plaintiff, to set aside such appraisement, and order a new one to be made, or to set aside such levy and appraisement, and award a new execution to issue, as the case may require.
Writ of execution to be returned within sixty days.Sect. 460. The sheriff or other officer, to whom any writ of execution shall be directed, shall return such writ to the court to which the same is returnable, within sixty days from the date thereof.
In case judgement is rendered against two or more persons severally bound, &c.Sect. 461. In all cases where judgment is rendered in any court of record within this territory, upon any other instrument of writing, in which two or more persons are jointly and severally bound, and it shall be made to appear to the court, by parol or other testimony, that one or more of said persons so bound, signed the same as surety or bail for his or their co-defendant, it shall be the duty of the clerk of said court, in recording the judgment thereon, to certify which of the defendants is principal debtor, and which are sureties or bail. And the clerk of the court aforesaid shall issue execution on such judgment, commanding the sheriff or other officer to cause the money to be made of the goods and chattels, lands and tenements, of the principal debtor, but for want of sufficient property of the principal debtor, to make the same, that he cause the same to be made of the goods and chattels, lands and tenements of the surety or bail. In all cases the property, both personal and real, of the principal debtor, within the jurisdiction of the court, shall be exhausted before any of the property of the surety or bail shall be taken in execution.
Fees of appraisers. If he fails to attend.Sect. 462. Each freeholder summoned to appraise real estate under the provisions of this chapter, shall be allowed and receive for his services the sum of fifty cents for each day he may be so engaged as such appraiser, to be collected on the execution, by virtue of which the property appraised was levied on, if claimed at the time of making the return of such appraisement. And when any freeholder, summoned as aforesaid, shall fail to appear at the time and place appointed by the officer, and discharge his duty as appraiser, he shall, on complaint being made to any justice of the peace of the precinct in which such freeholder resides, forfeit and pay the sum of fifty cents for every such neglect, unless he can render a reasonable excuse. Such sum shall be collected by said justice, and paid into the county treasury for the use of the county.
If a sheriff or other officer refuse or neglect to execute papers directed to him, &c., he shall be subjected to certain penalty.Sect. 463. If any sheriff or other officer shall refuse or neglect to execute any writ of execution to him directed, which has come to his hands; or shall neglect or refuse to sell any goods and chattels, lands and tenements, or shall neglect to call an inquest, and return a copy thereof forthwith to the clerk's office; or shall neglect to return any writ of execution to the proper court, on or before the return day thereof; or shall neglect to return a just and perfect inventory of all and singular the goods and chattels by him taken in execution, unless the said sheriff or other officer shall return that he has levied and made the amount of the debt, damages, and costs; or shall refuse or neglect on demand to pay over to the plaintiff, his agent or attorney of record, all moneys by him collected or received, for the use of said party, at any time after collecting or receiving the same, except as provided in section four hundred and forty-nine; or shall neglect or refuse, on demand made by the defendant, his agent or attorney of record, to pay over all moneys by him received for any sale made, beyond what is sufficient to satisfy the writ or writs of execution, with interest and legal costs, such sheriff or other officer shall, on motion in court and two days' notice thereof in writing, be amerced in the amount of said debt, damages, and costs, with ten per centum thereon, to and for the use of said plaintiff or defendant, as the case may be.
If clerk shall fail in his duty.Sect. 464. If any clerk of a court shall neglect or refuse, on demand made by the person entitled thereto, his agent or attorney of record, to pay over all money by him received, in his official capacity, for the use of such person, every such clerk may be amerced; and the proceedings against him and his sureties shall be the same as provided for in the foregoing section against sheriffs and their sureties.
When the cause is for refusing to pay over money.Sect. 465. When the cause of amercement is for refusing to pay over money collected as aforesaid, the said sheriff or other officer shall not be amerced in a greater sum than the amount so withheld, with ten per centum thereon.
When directed to officer of another county he may return same by mail.Sect. 466. When execution shall be issued in any county in this territory, and directed to the sheriff or coroner of another county, it shall be lawful for such sheriff or coroner having the execution, after having discharged all the duties required of him by law, to inclose such execution, by mail, to the clerk of the court who issued the same. On proof being made by such sheriff or coroner, that the execution was mailed soon enough to have reached the office where it was issued, within the time prescribed by law, the sheriff or coroner shall not be liable for any amercement or penalty, if it do not reach the office in due time.
Shall not forward money unless directed to do so.Sect. 467. No sheriff shall forward, by mail, any money made on any such execution, unless he shall be specially instructed to do it by the plaintiff, his agent or attorney of record. In case of amercement of officers of another county.In all cases of a motion to amerce a sheriff or other officer of any county other than the one from which the execution issued, notice in writing shall be given to such officer, as hereinbefore required, by leaving it with him, or at his office, at least fifteen days before the first day of the term at which such motion shall be made, or by transmitting the notice by mail, at least sixty days prior to the first day of the term at which such motion shall be made. All amercements so procured shall be entered on the record of the court, and shall have the same force and effect as a judgment.
Sureties of officer to be made parties to execution. Their goods and chattels, &c., not liable, until when.Sect. 468. Each and every surety of any sheriff or other officer may be made a party to the judgment rendered as aforesaid, against the sheriff or other officer, by action, to be commenced and prosecuted as in other cases. But the goods and chattels, lands and tenements of any such surety, shall not be liable to be taken on execution, when sufficient goods and chattels, lands and tenements of the sheriff or other officer, against whom execution may be issued, can be found to satisfy the same. Nothing herein contained shall prevent either party from proceeding against such sheriff or other officer, by attachment, at his election.
If case officer amerced shall not have collected amount of original judgement.Sect. 469. In cases where a sheriff or other officer may be amerced, and shall not have collected the amount of the original judgment, he shall be permitted to sue out an execution, and collect the amount of said judgment in the name of the original plaintiff, for his own use.
CHAPTER II.—Proceedings in aid of Execution.
When there is not sufficient personal and real property.Sect. 470. When a judgment debtor has not personal or real property subject to levy on execution, sufficient to satisfy the judgment, any interest which he may have in any banking, turnpike, bridge, or other joint-stock company, or any interest he may have in any money contracts, claims, or choses in action, due or to become due to him, or in any judgment or decree; or any money, goods, or effects which he may have in possession of any person, body politic or corporate, shall be subject to the payment of such judgment, by proceedings in equity, or as in this chapter prescribed.
When an execution is returned unsatisfied.Sect. 471. When an execution against the property of a judgment debtor, or one of several debtors in the same judgment, is issued to the sheriff of a county where he resides, or if he do not reside in the territory, to the sheriff of the county where the judgment was rendered, or a transcript of a justice's judgment has been filed, is returned unsatisfied, in whole or in part, the judgment creditor is entitled to an order from a judge of the district court of the county to which the execution was issued, requiring such debtor to appear and answer concerning his property, before such judge, or a referee appointed by such judge, at a time and place specified in such order, within the county to which the execution was issued.
If court is satisfied that judgement debtor has property which he refuses to apply.Sect. 472. After the issuing of an execution against property, and upon proof by affidavit of the judgment creditor or otherwise, to the satisfaction of the district court, or a judge thereof, that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by order, require the judgment debtor to appear at a time and place in said county, to answer concerning the same. And such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment as are prescribed in this chapter.
Sect. 473.
No person excused from testifying, on ground of fraud, &c.Sect. 474. No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of a fraud, but his answer shall not be used as evidence against him in a criminal prosecution for such fraud.
How execution may be satisfied.Sect. 475. After the issuing of execution against property, any person indebted to the judgment debtor, may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid, or directed to be credited by the judgment creditor on the execution.
When persons or corporations may be called upon to testify as to property in their hands.Sect. 476. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon proof, by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place within the county in which such person or corporation may be served with the order to answer, and answer concerning the same. The judge may, also, in his discretion, require notice of such proceeding to be given to any party in the action, in such manner as may seem to him proper.
Witnesses may be required by order of judge or subpœna.Sect. 477. Witnesses may be required, upon the order of the judge, or by a subpœna issued by the clerk of the district court, to appear and testify upon any proceedings in this chapter, in the same manner as upon the trial of an issue.
Shall attend before whom.Sect. 478. The party or witness may be required to attend before the judge, or before a referee appointed by the court or judge. If before a referee, the examination must be taken by the referee and certified by the judge. All examinations and answers before a judge or referee, under this chapter, must be on oath; but when a corporation answers, the answer must be on the oath of an officer thereof.
What may be applied in satisfaction of judgement.Sect. 479. The judge may order any property of the judgment debtor, not exempt by law, in the hands of either himself or any other person or corporation, or due to the judgment debtor, to be applied towards the satisfaction of the judgment; but the earnings of the debtor for his personal services, at any time within three months next preceding the order, cannot be so applied, where 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.
Judge may appoint receiver.Sect. 480. The judge may also, by order, appoint the sheriff of the proper county, or other suitable person, a receiver of the property of the judgment debtor, in the same manner and with the like authority as if the appointment was made by the court. The judge may also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt by law, and any interference therewith.
If sheriff is appointed receiver.Sect. 481. If the sheriff shall be appointed receiver, he and his sureties shall be liable to his official bond for the faithful discharge of his duties as such receiver. If any other person shall be appointed receiver, he shall give a written undertaking in such sum as shall be prescribed by the judge, with one or more sureties, to the effect that he will faithfully discharge his duties of receiver, and he shall also take an oath to the same effect, before acting as such receiver. The undertaking mentioned in this section shall be to the Territory of Dakota, and actions may be prosecuted for a breach thereof, by any person interested, in the same manner as upon a sheriff's official bond.
Proceedings may be continued.Sect. 482. The judge or referee, acting under the provisions of this chapter, shall have power to continue his proceedings from time to time until they are completed.
Judge may order referee to report on facts.Sect. 483. The judge may, in his discretion, order a reference to a referee agreed upon or appointed by him, to report the evidence of the facts.
If orders of judge or referee are disobeyed.Sect. 484. 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 contempt.
Orders to be in writing and signed. To be filed.Sect. 485. The orders to judgment debtors and witnesses, provided for in this chapter, 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.
Fees to officers.Sect. 486. 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.
Sect. 487. • • • Sect. 488. • • • Sect. 489. • • • Sect. 490. • • • Sect. 491. • • • Sect. 492. • • • Sect. 493. • • • Sect. 494. • • • Sect. 495. • • •
CHAPTER IV.—Executions for the Delivery of Real Property.
If the execution is for the delivery of real property.Sect. 496. If the execution be for the delivery of the possession of real property, it shall require the officer to deliver the same, particularly describing the property, to the party entitled thereto, and may at the same time require the officer to satisfy any costs or damages recovered in the same judgment, out of the goods and chattels of the party against whom it was rendered, and for want of such goods and chattels, then out of the lands and tenements; and in this respect it shall be deemed an execution against the property.
If not for money or real property.Sect. 497. When the judgment is not for the recovery of money or real property, the same may be enforced by attachment by the court rendering the judgment, upon motion made, or by a rule of the court upon the defendant; but in either case, notice of the motion, or a service of a copy of the rule, shall be made on the defendant a reasonable time before the order of attachment is made.
CHAPTER V.—Judgment before Justices of the Peace.
Judgements rendered by justices to be recorded with clerk of district court.Sect. 498. In all cases in which judgment shall be rendered by a justice of the peace, the party in whose favor the judgment shall be rendered may file a transcript of such judgment in the office of the clerk of the district court of the county in which the judgment was rendered, and thereupon the clerk shall, on the day on which the same shall be filed, enter the case on the execution docket, together with the amount of the judgment and the time of filing the transcript.
Judgement have lien from when.Sect. 499. Such judgment, if the transcript shall be filed in term time, shall have a lien on the real estate of the judgment debtor from the first day of the term; if filed in vacation, as against the judgment debtor, said judgment shall have a lien from the day of the filing, and as against subsequent judgment creditors—at the next succeeding and other transcripts filed in vacation, said judgment shall have lien from the first day of the next term of the court in the same manner and to the same extent as if the judgment had been rendered in the district court.
Execution issued to sheriff same as in court.Sect. 500. Execution may be issued thereon to the sheriff by the clerk of the court, in the same manner as if the judgment had been taken in 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.
Justice shall certify amount paid on judgement. Costs paid by whom.Sect. 501. The justice of the peace shall certify, on the transcript, the amount, if any, paid on such judgment. The costs of the transcript, the filing of the same, and the entry of the case on the execution docket shall be paid by the party filing the same, and be taxed in the costs.