H. Newmark & Co. v. Chapman
H. Newmark & Co. v. Chapman
Opinion of the Court
The process under which the mortgaged property was sold was only a copy of the judgment issued and attested by the Clerk. It did not conform to secs. 682 and 684 of the Code of Civil Procedure, as it did not purport to have been issued in the name of the People, nor was it directed to the Sheriff, nor did it direct him to execute the judgment. Process of that kind was regarded
The process was erroneous; but was it, for the defects above mentioned, void? The judgment itself directed the Sheriff to do all that process, issued in the most formal and regular manner, could have directed him to do. If the process was amendable by supplying the above-mentioned defects, it was not void; for void process cannot be amended; and if it Was amendable, it will be treated, in this proceeding, as having been amended— that is to say, it cannot be attacked collaterally. (Hunt v. Loucks, 38 Cal. 372.) The power to amend process, so as to correct clerical misprisions and supply omissions of matters of form, is almost universally conceded; and in view of the numerous amendments, both of form and of substance, allowed by the Courts, it is difficult to prescribe limits to this salutary power, -in cases where it does not appear that the amendment will injuriously affect the interests of third persons. And, accordingly, amendments have been allowed by which all the defects of the kind of those in the process in this case have been remedied. (See Freeman on Executions, sec. 63 and following, and cases there cited.)
The process, though erroneous, was not void; and as against the defendant, who is the tenant of one of the defendants in the action to foreclose the mortgage, under a lease made after the commencement of that action, the process will be regarded as sufficient authority to the Sheriff to sell and convey the mortgaged premises.
Order affirmed.
Reference
- Full Case Name
- H. NEWMARK & CO. v. R. H. CHAPMAN
- Cited By
- 9 cases
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- Syllabus
- Process Erroneous but not Void.—A copy of a judgment of foreclosure of a mortgage, issued by the Clerk to the Sheriff, will be regarded as process for the execution of the judgment, and although erroneous is not void, but may be amended. Writ on Assistance. — In proceedings for a writ of assistance, a person in possession under a lease, made after the commencement of the action to foreclose the mortgage, cannot collaterally attack the process on the ground that it is erroneous.