Page images

be given for the excess; or if the defendant is entitled to any other affirmative relief, judgment shall be given accordingly.

Sec. 176. In an action to recover personal property, judgment may be for the plaintiff for the possession, or value thereof, in case a delivery thereof cannot be had, and damages for the detention of the same.

If the property has been delivered to the plaintiff, and the defendant claims a return of the property, judgment for the defendant may be for the return of the property or the value thereof—in case a return cannot be had—and damages for taking and withholding the same.

Sec. 177. The judgment shall be entered in the order book, and shall specify clearly the relief granted or other determination of the action, and if the judgment be for money, the amount thereof shall be stated in words.

Sec. 178. If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment shall not be a lien on the real property of the deceased party unless such judgment is for the purchase-money thereof, but shall be payable in the course of administration on his estate.

Sec. 179. The clerk shall keep a docket which shall be styled a "Judgment Docket," in which he shall enter under their appropropriate heads the names of the parties against whom judgment was rendered. If the judgment is for money, the amount thereof, the date of the rendition of the judgment, and the page where entered in the order book, and leave a space sufficient to enter satisfaction of the judgment.

SEC. 180. The judgment shall, from the date of its rendition, become a lien upon all the real property of the judgment debtor not exempt from execution in the county in which it is rendered owned by him at the time, or in which he has any interest, or any that he may afterwards acquire until said lien expires. The lien shall continue for two years unless the judgment is previously satisfied.

SEC. 181. A transcript of the judgment, certified by the clerk and under seal of the court, may be filed with the recorder of any other county, and from the time of the filing the judgment shall become a lien upon all the real property of the judgment debtor not exempt from execution in such county, owned by him at the time, or which he may afterwards acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied.

SEC. 182. Satisfaction of a judgment may be entered in the judgment docket by the judgment creditor or his attorney, and by the clerk when an execution thereon is returned satisfied, and upon the record of the same, filed with any recorder as herein provided, by the judgment creditor or his attorney, or by filing with such recorder an acknowledgment of satisfaction, acknowledged before any person authorized to take the acknowledgment of deeds, which shall be recorded by such recorder and shall refer to such judgment. Whenever a judgment is satisfied otherwise than upon execution, it shall be the duty of the party or attorney to satisfy the same or give acknowledgment of satisfaction, as the case may be, and on motion the court may order it to be done.



Sec. 183. The party in whose favor judgment is given may at any time within five years from the entry thereof issue a writ of execution for its enforcement, as prescribed in this chapter.

Sec. 184. The writ of execution shall be issued in the name of the Territory of Montana, sealed with the seal of the court and signed by the clerk, and shall be directed to the sheriff of the county where it is to be executed, and shall intelligibly refer to the judgment, stating the court, the county where the judgment was rendered, the names of the parties, the judgment, and if it be for money, the amount thereof, and the amount actually due thereon, and shall require the sheriff substantially as follows: First, If it be for money, it shall require the sheriff to satisfy the judgment, interest and costs, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of his real property, or if the judgment be a lien upon real property, then out of the real property belonging to him on the day the judgment was rendered, or if the execution be issued to a county other than the one in which the judgment was recovered, on the day when the transcript of the judgment was filed in the office of the recorder of such county, or at any time thereafter. Second, If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall require the sheriff to satisfy the judgment, with interest and costs, out of such property. Third, If it be for the delivery of the possession of real or personal property, it shall require the sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the sheriff to satisfy any costs, damages, rents or profits recovered by the same judgment out of the personal property of the person against whom it was rendered, and the value of the property for which judgment was recovered, to be satisfied therein, if a delivery thereof cannot be had, and if sufficient personal property cannot be found, then out of the real property of the defendant.

Sec. 185. When a writ of execution is issued on a judgment recovered against two or more persons in an action upon a joint contract, in which action all the defendants were not served with summons, or did not appear, it shall direct the sheriff to satisfy the judgment out of the joint. property of all the defendants, and the undivided property only of the defendants who were served, or who appeared in the action. In other respects the writ shall be as herein provided.

Sec. 186. The execution shall be made returnable within sixty days after its receipt by the sheriff to the office of the clerk of the court where the judgment was rendered.

Sec. 187. The sheriff receiving an execution shall endorse thereon the day, month, and year, when he received the same.

SEC. 188. Where the judgment requires payment of money, or the delivery of real or personal property, the same shall be enforced in those respects by execution. When it requires the performance of any other act, a certified copy of the judgment may be served - upon the party against whom it is given, or upon the person or officer who is required thereby or by law to obey the same, and his obedience thereto enforced.

SEC. 189 After the lapse of five years from the entry of judgment, an execution shall be issued only by leave of the court on motion. Such leave shall not be given unless it be established by the oath of the party, or other proof, that the judgment, or some part thereof, remains unsatisfied and due.

Sec. 190. Notwithstanding the death of a party after the judgment, execution may issue thereon against the property of the debtor by permission of the probate court, and shall be issued and executed in the same manner, and with the same effect, as if the judgment debtor were alive.

Sec. 191. Executions against the property of the judgment debtor may be issued to any court, and executions may be issued to the different counties at the same time. Where an execution requires the delivery of real or personal property, it shall be issued to the county where the property or some part thereof is situated.

SEC. 192. All goods, chattels, moneys, and other property real or personal of the judgment debtor not exempt by law, and all property and rights of property seized and held under attachment in the action, shall be liable to execution. Until a levy, property shall not be affected by the execution. Shares and interests in any corporation or company, and debts and credits, and other property not capable of manual delivery, may be attached on execution in like manner as upon writs of attachment. Gold dust, and gold and silver bullion, shall be returned by the officer as so much money collected at its current value, without exposing the same for sale.

SEC. 193. All real and personal estate belonging to any married woman at the time of her marriage, and all which she may have acquired subsequently to such marriage, or to which she shall have after become entitled in her own right, and all her personal earnings, and all the issues, rents and profits of such real estate, sball not be liable to attachment for or execution upon any liability or judgment against the husband so long as she or any minor child of her body be living: Provided, that her separate property shall be liable for debts owing by her at the time of her marriage.

Sec. 194. The following property shall be exempt from execution or attachment, except as hereinafter specially provided : First, A homestead not exceeding three thousand dollars in value, to include the dwelling-house and other buildings, and the lands and lots upon which they stand. Second, All wearing apparel of every person and family. Third, All private libraries, musical instruments, family pictures, and keepsakes. Fourth, To each household two beds and bedding, and one additional bed and bedding for every two members of the family, and other household goods and utensils and furniture not exceeding two hundred and fifty dollars in value. Fifth, To each household one horse, two cows with their calves, ten swine, two stands of bees, fifty domestic fowls, and provisions and fuel for the comfortable maintenance of such household and family for three months. Provided, That in case such householder shall not possess, or shall not desire to retain, the animals above named, he may select from his stock and retain other animals not to exceed three hundred dollars in value. Sixth, To a farmer, the tools, implements, and farming utensils actually used about the farm, two yoke of oxen, with yokes and chains, or one span of horses, with harness and one wagon. Seventh, To a mechanic, the tools and instruments used to carry on the trade, occupation or business in which he is engaged for his support or the support of his family, also material not exceeding in value two hundred dollars. Eighth, To physicians, their libraries and medicines, not exceeding in value two hundred dollars. Ninth, To attorneys, clergymen, teachers, and other professional men, their libraries. Tenth, All property of the Territory, or of any county, incorporated city, town or village therein, or of any public or municipal corporation of like character. Eleventh, All fire-arms kept for the use of any person or family. Twelfth, To any person a skiff, or small boat, with its oars, sails, and rigging, not exceeding in value fifty dollars. Thirteenth, The tent and furniture, including a table, camp-stools, bed and bedding of a miner, his rocker, shovels, spades, picks, wheelbarrows, pumps, cabin, sluice-boxes and flumes, and other instruments used in mining, with provisions necessary for his support for three months. Fourteenth, A sufficient quantity of hay or grain or feed for keeping for three months the animals mentioned in the several sub-divisions of this section as exempt from execution or attachment. But no article of property mentioned in this section shall be exempt from an execution issued upon a mortgage thereon, or for any tax levied thereon, or for any judgment for the purchase money thereof. Provided, That no mortgage made by a married man of any property exempt from execution and attachment by this act, shall be of any validity unless the wife shall join in such mortgage, and the same be witnessed and acknowledged by her the same as required in case of a deed conveying her interest in real estate.

Sec. 195. Any person desiring to take the benefit of this act shall do so at the time property is levied on or attached, or within a reasonable time thereafter, according to circumstances.

« ՆախորդըՇարունակել »