MOTION to set aside an order granting a rehearing.

The facts are stated in the opinion of the court.

Robert Y. Hayne, for Petitioner.

George W. Towle, Jr., and Henry S. Foote, for Respondent.

MCFARLAND, J.-This proceeding is an original petition in this court for a writ of prohibition. There was a decision here in favor of petitioner August 19, 1893; but within thirty days thereafter an order of this court was made granting a rehearing. Petitioner now moves to set aside said order granting said rehearing upon the ground that the court had no power to make it-contending that a motion for a new trial was the proper remedy.

The point was substantially determined against petitioner's contention in In re Tyler, 71 Cal. 374. It may be further said that the present constitution provides that the judgment of a department of this court shall be final in thirty days, unless before that time ordered into Bank; and that there has been a rule in this court ever since its origin that a judgment of the court in Bank shall be final in thirty days, unless before that time a rehearing shall have been granted. Neither the constitution nor the rule makes any distinction between cases of appellate jurisdiction and cases of original jurisdiction; and indeed most of the cases here which are in form original are, like the case at bar, in their nature appellate. Therefore, to apply to this court those parts of the Code of Civil Procedure about new trials, etc., which are evidently intended to regulate procedure in the superior courts would be to overthe constitutional provision above mentioned, as well as the ancient rule and uniform practice of the court. A motion for a new trial, with its attendant consequences and delays, would suspend a judgment rendered here beyond the time fixed by the constitution

and the rule. Many of the provisions of the code about procedure have reference to appeals, and were intended as means for the perfection of records in the superior courts upon which cases might be reviewed in the appellate court; but in an original proceeding here this court has its own record. The general power of this court to grant rehearings is fully discussed and declared in the opinion delivered by Beatty, C. J., in the Jessup Case, 81 Cal. 459.

The motion to set aside the order granting a rehearing is denied.

DE HAVEN, J., HARRISON, J., PATERSON, J., and BEATTY, C. J., concurred.

[No. 19271. Department One.-January 29, 1894.] NORTHERN COUNTIES INVESTMENT TRUST (LIMITED), APPELLANT, v. JOHN CADMAN ET AL., RE

SPONDENTS.

FORECLOSURE DECREE-SALE UNDER EXECUTION-PUBLICATION OF NOTICE -RIGHTS OF SHERIFF DIRECTION OF PARTY.-Under sections 692 and 693 of the Code of Civil Procedure, it is the duty and right of the sheriff to publish the notice of sale under execution foreclosure decree, and he alone has the power to determine and select the places and newspapers in which to publish the required notice, and the attorneys for the party enforcing the decree have no right to contract for the publication of the notice in a particular newspaper, or to direct the sheriff to make such publication.

APPEAL from an order denying plaintiff's motion that the court direct the sheriff to publish notice of sale under execution in a particular newspaper.

The facts are stated in the opinion.

Smith & Winder, and Victor Montgomery, for Appellant.

The attorney of a judgment creditor has implied authority to direct the sheriff as to the time and manner of enforcing the execution. (Willard v. Goodrich, 31

Vt. 597; Gorham v. Gale, 7 Cow. 739; Erwin v. Blake, 8 Pet. 18; Linch v. Commonwealth, 16 Sergt. & R. 368; Jenney v. Delesdernier, 20 Me. 183; Webb v. White, 18 Tex. 572; Kimball v. Perry, 15 Vt. 414.) Proceedings under the execution are proceedings in the suit, and the attorney's right to control the officer in executing the process is everywhere upheld. (Union Bank v. Geary, 5 Pet. 99; Read v. French, 28 N. Y. 285; Silvis v. Ely, 3 Watts & S. 420; Ward v. Roy, 69 N. Y. 96.) The attorney has control over the execution in every respect; he may withdraw it from the hands of the sheriff, or suffer it to become dormant, or authorize the officer to depart from the usual course of his duty. (In re Hampton, 2 G. Greene, 137; Tucker v. Bradley, 15 Conn. 50; Pierce v. Partridge, 3 Met. 44; Rogers v. McDearmid, 7 N. H. 506; Fitts v. Johnson, 22 Ga. 307; Richardson v. Bartley, 2 B. Mon. 328; Patton v. Hamner, 28 Ala. 618; Hill v. Pratt, 29 Vt. 119; Sterns' Appeal, 64 Pa. St. 447; Sherry v. Schuyler, 2 Hill, 204; Colton v. Camp, I Wend. 365; Corning v. Southland, 3 Hill, 552; Walters v. Sykes, 22 Wend. 566, 569; Nelson v. Cook, 19 Ill. 440; Armstrong v. Garrow, 6 Cow. 465, Root v. Wagner, 30 N. Y. 18; Smith on Sheriffs and Constables, p. 308.) The officer is bound to obey the attorney's instructions. (Jackson v. Anderson, 4 Wend. 480.) Where an attorney is employed to collect a debt, it implies as great a discretion vested in him after judgment as before. (Code Civ. Proc., sec. 283; McDonald v. Todd, I Grant, 17; Butler v. Knight, L. R. 2 Ex. 109.) The spirit if not the letter of the statute authorizes the attorneys to give written instructions, such as were given in this case, and makes it the duty of the sheriff to obey said instructions. (Pol. Code, sec. 4185.) The court had the power to compel the sheriff to perform the duty thus imposed. (Code Civ. Proc., secs. 128, 177, 187.) The attorney and sheriff are both officers of the court, and the attorney who causes process to be issued in behalf of his client and places the same in the sheriff for execution is, in respect

hands of the

the process,

superior to the sheriff and has the power to control the sheriff's action in respect to the process. (Houston v. Williams, 13 Cal. 24; Kennedy v. Hamer, 19 Cal. 386; Ex parte Hartman, 44 Cal. 32; Mawson v. Mawson, 50 Cal. 542; Grady v. Porter, 53 Cal. 680; People v. Center, 54 Cal. 236.)

F. O. Daniel, and Charles S. McKelvey, for Respondent.

The duty of the sheriff, in selecting the paper in which to publish the notice, is in the nature of a judicial, and not a ministerial, act, one which leaves it to his own judgment, discretion, and choice, restricted only by the requirement that it must be some newspaper published in the county. (Code Civ. Proc., secs. 692, 693; Sullivan v. Shanklin, 63 Cal. 251; Throop on Public Officers, secs. 534, 535; Mecham on Public Officers, secs. 594, 638, 639; Porter v. Haight, 45 Sal. 639; Life etc. Ins. Co. v. Adams, 9 Pet. 603; Wiltsie on Mortgage Foreclosures, p. 627; Freeman on Executions, sec. 288.) The discretion of the sheriff cannot be controlled. (Carmichael v. Gillivray, 57 Cal. 8; Smith v. Randall, 6 Cal. 47; Journal Pub. Co. v. Whitney, 97 Cal. 283; Winton v. Wilson, 44 Kan. 146; Gaines v. Thompson, 7 Wall. 347; Throop on Public Officers, secs. 822, 849; County of San Mateo v. Mahoney, 71 Cal. 208, citing Gaines v. Thompson, 7 Wall. 347; Porter v. Haight, 45 Cal. 639. See, also, Ballerino v. Mason, 83 Cal. 449; Porter v. Haight, 45 Cal. 640. To justify the granting of the order the duty of the sheriff to publish the notice in the paper designated by plaintiff's attorney must have been absolute. (Mecham on Public Officers, sec. 667; Davisson v. Board of Supervisors, 70 Cal. 612, 613; Richardson v. Tobin, 45 Cal. 33.) The sheriff is not the agent of the execution creditor, he is the agent of the law. (Griffin v. Thompson, 2 How. 244; Sims v. Campbell, 16 Am. Dec. 596.) The notice of sale is not required for the benefit of the plaintiff, it is required for the benefit of the defendant, that his property may not be sacrificed; and it has been held that the defendant may waive

notice of the sale. (Freeman on Executions, secs. 286, 289.)

VANCLIEF, C.-This appeal is from an order made after judgment denying plaintiff's motion for an order directing the sheriff to publish notice of sale of real estate on execution, in a certain newspaper selected and designated by the plaintiff's attorneys.

The record contains no part of the judgment-roll, nor anything to show the nature of the action, the substance of the judgment, or the form or substance of the execution, except that it required the sheriff to sell real property "under a decree and writ rendered and issued herein," and placed in the sheriff's hands by plaintiff's attorneys for service, with their written instructions to publish notice of the sale in the newspaper designated.

The bill of exceptions show that the motion was supported by, and heard upon, the affidavit of one of plaintiff's attorneys alone, the material substance of which is, that having contracted for the publication of the notice in a daily paper, the Daily Evening Blade, he gave the sheriff "written instructions, signed by affiant and his associate counsel, requesting and directing said sheriff to advertise said notice of sale of said property in the Daily Evening Blade for the length of time required by the statute"; but that the sheriff ignored and disregarded said instructions, and commenced the publication of said notice in the Weekly Gazette, a weekly paper published in the same county (Orange), having, as affiant is informed and believes, a circulation "of about four hundred"; whereas he is informed and believes the Daily Blade has a circulation "of about seven hundred." "That the judgment in this case is for a large sum, and plaintiff will be put to heavy costs. in connection with the sale of said land, and as plaintiff is a non-resident, it wishes to avoid the necessity of bidding in said land, or any part thereof, and to secure, if possible, purchasers at said sale who will take said property at such