TITLE 5. Entry of judgment or order; roll. the judgment, and either before or after the appeal is taken. An appeal from an interlocutory judgment, or from an order, taken as prescribed in this title, must be heard upon a certified copy of the notice of appeal, and of the papers used before the court or the judge, upon the hearing of the demurrer, application for judgment, or motion, as the case requires. § 1354. Where judgment of affirmance is rendered upon the appeal, the judgment-roll consists of a certified copy of the judgment, annexed judgment to the papers, upon which the appeal was heard. Where subsequent proceedings are taken, at the special term or trial term, before the entry of final judgment, the judgment-roll must also contain the proper papers relating thereto. Hearing, etc., in the supreme court. § 1355. An appeal taken to the general term of the supreme court, as prescribed in this title, must be heard in the department, embracing the county, in which the judgment or order appealed from is entered; unless an order is made, as prescribed in section two hundred and thirty-one of this act, directing that it be heard in another department. The judgment rendered, or the order made, upon the appeal, must be entered, and the judgment-roll, or the papers upon which the appeal was determined, as the case requires, must be filed, in the office of the clerk of the county, where the judgment or order appealed from is entered. If the appeal is determined at a general term, held in another county, the clerk of that county must, at the expense of the successful party, transmit a certified copy of the determination, and the other papers, if any, required to be filed, to the clerk of the county where the judgment or order is to be entered.> Appeal from order TITLE V. Appeal from a final determination in a special proceeding. SECTION 1356. Appeal from order made in the same court. 1358. Intermediate order may be reviewed. 1359. Limitation of time to appeal. 1360. Stay of proceedings; hearing of appeal; decision thereupon. 1361. This title qualified. Application of provisions relating to actions. § 1356. An appeal may be taken, to the general term of the supreme made in the court, or of a superior city court, from a final order, affecting a subsame court. stantial right, made in a special proceeding, at a special term or a trial Id.; when made by another court or judge. term of the same court, or, in the supreme court, at a term of a circuit court; or made by a judge of the same court, in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before him. § 1357. An appeal may also be taken to the supreme court, from a final order, affecting a substantial right, made by a court of record, possessing original jurisdiction, or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before, the judge who made the final order. But this section does not apply to a case, where an appeal from the order, to a court, other than the supreme court, is expressly given by statute. TITLE 5. ate order § 1358. An appeal, authorized by this title, brings up for review, Intermedieach intermediate order, made in the course of the special proceeding, may be roinvolving the merits, and necessarily affecting the final order appealed viewed. from, which is specified in the notice of appeal. appeal. § 1359. An appeal, authorized by this title, must be taken within Limitation thirty days after service of a copy of the final order, from which it is of time to taken, with a written notice of the entry thereof, upon the appellant; or, if he appeared, upon the hearing, by an attorney at law or an attorney in fact, upon the person who so appeared for him. § 1360. The provisions of title fourth of this chapter, relating to per- Stay of profecting an appeal from an order, taken as therein prescribed; to stay- hearing of ceedings; ing the execution of the order appealed from; to hearing the appeal; appeal; deand to the entry and enforcement of the order made upon the appeal, thereupon, apply, where an appeal is taken, as prescribed in this title, except as otherwise specially prescribed by law. cision visions re § 1361. This title does not confer the right to appeal from an order, This title in a case, where it is specially prescribed by law, that the order cannot qualified. Applicabe reviewed. The proceedings upon an appeal, taken as prescribed tion of proin this title, are governed by the provisions of this act, and of the lating to general rules of practice, relating to an appeal in an action, except as actions. otherwise specially prescribed by law. 263 TITLE 1. CHAPTER XIII. EXECUTIONS. TITLE I.-FORMS OF EXECUTION; TIME AND MANNER OF ISSUING OFFICERS. TITLE II.-EXECUTION AGAINST PROPERTY. TITLE III.-EXECUTION AGAINST THE PERSON. To whom execution directed; where TITLE I. Forms of execution; time and manner of issuing an execution; general duties and liabilities of officers. SECTION 1362. To whom execution directed; provision where sheriff is a party. 1363. Time of receipt to be indorsed on execution. 1364. The different kinds of execution. 1365. To what counties executions may issue. 1366. General requisites of executions. 1367. Id.; when issued on filing transcript from justice's court, etc. 1368. Requisites of execution for the collection of money. 1369. Id.; against property. 1370. Id.; where a warrant of attachment has been issued. 1371. Id.; against executor, etc. 1372. Id.; against the person. 1373. Id.; for delivery of property. How money, recovered by same judgment, may be collected. 1374. Separate executions, where separate sums awarded. 1375. Execution of course, within five years. 1376. Execution, after death of judgment creditor. 1377. When execution may be issued after five years. 1378. Id.; leave, how obtained. 1379. No execution against decedent, except, etc. 1380. Leave required to issue execution against decedent's property. 1381. Leave, how obtained. 1382. Time of stay by order, etc., not reckoned under this title. 1383. Execution against surviving judgment debtors. 1384. Sale on execution, etc.; when and how conducted. 1385. Penalty for taking down or defacing notice of sale. 1386. Validity of sale, when not affected by sheriff's default, etc. § 1362. An execution must be directed to the sheriff, unless he is a party or interested; in which case it must be directed as prescribed in provision section one hundred and seventy-three of this act. But the court may, in its discretion, order an execution, issued upon a judgment rendered against a sheriff, either alone or with another, to be directed to a person, designated in the order, instead of to the coroners, or a particular sheriff is a party. coroner; in which case it must be so directed. The person so designated must be of full age, a resident of the State, and not a party to the action, or interested therein. Where the execution is issued upon a judgment for a sum of money, or directing the payment of a sum of money, the order does not take effect, until the person so designated executes, and files in the clerk's office, a bond to the people, with at least two sureties, approved by a judge of the court, or a county judge, in a penal sum, fixed by the order, not less than twice the sum to be collected by virtue of the execution; conditioned for the faithful performance of his duties under the execution. A certified copy of the order, and, where it requires a bond to be given, the clerk's certificate that a bond has been filed, as required by the order, must be attached to the execution. The person so designated is deemed an officer; and, with respect to that execution, he is subject to the obligations and liabilities, and has the power and authority of a coroner, and is entitled to fees accordingly. TITLE 1. ceipt to be § 1363. The sheriff, to whom an execution is directed and delivered, Time of remust, upon the receipt thereof, indorse thereupon a memorandum of indorsed the day, hour, and minute, when he received it." § 1364. There are four kinds of execution, as follows: 1. Against property. 2. Against the person. 3. For the delivery of the possession of real property, with or without damages for withholding the same. 4. For the delivery of the possession of a chattel, with or without damages for the taking or detention thereof. An execution is the process of the court, from which it is issued. on execution. The different kinds of execu tion. counties § 1365. An execution against property can be issued only to a county, To what in the clerk's office of which the judgment is docketed. An execution executions against the person may be issued to any county. An execution for the may issue. delivery of the possession of real property, must be issued to the county, where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county, where the chattel is found; or to the sheriff of the county where the judgment-roll is filed. Executions, upon the same judgment, may be issued at the same time, to two or more different counties. § 1366. An execution must intelligibly describe the judgment, stat- General requisites ing the names of the parties in whose favor, and against whom, the of executime when, and the court in which, the judgment was rendered; and, tions. if it was rendered in the supreme court, the county in which the judgment-roll is filed. It must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof. Except as otherwise prescribed in the next section, it must be made returnable to the clerk, with whom the judgment-roll is filed. issued on § 1367. Where an execution is issued out of a court, other than that Id.; when in which the judgment was rendered, upon filing a transcript of the filing tranjudgment rendered in the latter court, it must also specify the clerk, script from justice's with whom the transcript is filed, and the time of filing; and it must court, etc, be made returnable to that clerk. If the judgment was rendered in a justice's court, it must specify the justice's name; and it must omit the specification, respecting the filing of the judgment-roll. § 1368. An execution, issued upon a judgment for a sum of money, Requisites or directing the payment of a sum of money, must specify, in the body of execu thereof, the sum recovered, or directed to be paid, and the sum actually collection due when it is issued. It may specify a day, from which interest upon tion for the of money. TITLE 1. Id.; against property. Id.; where a warrant of attach ment has been issued. Id.; against executor, etc. Id.; against the person. Id.; for delivery of ed. the sum due is to be computed; in which case, the sheriff must collect interest accordingly, until the sum is paid. If all the parties, against whom the judgment is rendered, are not judgment debtors, the execution must show who is the judgment debtor. § 1369. An execution against property must, if the judgment-roll is not filed in the clerk's office of the county to which it is issued, specify the time when the judgment was docketed in that county. It must, except in a case where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment, out of the personal property of the judgment debtor; and, if sufficient personal property cannot be found, out of the real property, belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter. § 1370. Where a warrant of attachment, issued in the action, has been levied, by the sheriff, the execution must substantially require the sheriff to satisfy the judgment, as follows: 1. Where the judgment debtor is a non-resident, or a foreign corporation, and the summons was served upon him or it, without the State, or otherwise than personally, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, and the judgment debtor has not appeared in the action; out of the personal property attached, and, if that is insufficient, out of the real property attached. 2. In any other case, out of the personal property attached; and, if that is insufficient, out of the other personal property of the judgment debtor; if both are insufficient, out of the real property attached; and, if that is insufficient, out of the real property, belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter. § 1371. An execution against real or personal property, in the hands of an executor, administrator, heir, devisee, legatee, tenant of real property, or trustee, must substantially require the sheriff to satisfy the judgment, out of that property. § 1372. An execution against the person must substantially require the sheriff, to arrest the judgment debtor, and commit him to the jail of the county, until he pays the judgment, or is discharged according to law. Except where it may be issued, without the previous issuing and return of an execution against property, it must recite the issuing and return of such an execution, specifying the county to which it was issued. § 1373. An execution for the delivery of the possession of real propproperty. erty, or a chattel, must particularly describe the property, and desigmoney, re. nate the party to whom the judgment awards the possession thereof; covered by and it must substantially require the sheriff, to deliver the possession ment, may of the property, within his county, to the party entitled thereto. If a be collect- sum of money is awarded by the same judgment, it may be collected, by virtue of the same execution; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must contain, with respect to the money to be collected, the same directions as an execution against property, or against the person, as the case requires. § 1374. Where a judgment awards different sums of money, to or where sep against different parties, a separate execution may be issued, to collect arate sums each sum so awarded; subject to the power of the court, to control the awarded. enforcement of the executions, upon motion, where the collection of one Separate executions, execution will, wholly or partly, satisfy another. |