issued upon a judgment recovered for its price, or upon a judgment of foreclosure of a mortgage or other lien thereon. (20)-A United States homestead cannot be attached or sold under execution for any debt contracted prior to proving up and obtaining title to the land. (21)— All money received by any person, a resident of the State, as a pension from the United States government, whether the same shall be in the actual possession of such pensioner, or deposited, loaned or invested by him.

Act of the Legislature, in effect May 22, 1907.

Section 707.-HOMESTEAD MONEY EXEMPT.-The law with reference to State homesteads has already been stated in preceding sections, and to what extent such homesteads are exempt from attachment or execution. It should be added, that if the homestead be sold by the owner, the proceeds arising from such sale, to the extent of the value. allowed for a homestead exemption, as above stated, will be exempt from attachment for a period of six months from the time of the sale. If, for instance, the husband and wife should sell their homestead for five thousand dollars, they can take that money at any time within six months and put it into another homestead, and it will be also exempt when another declaration of homestead has been filed. The money will be exempt for six months, so as to give an opportunity to select and purchase another homestead with it.

Act of the Legislature, approved February 15, 1911.

Section 708.-MORTGAGED PROPERTY MAY BE ATTACHED.-Property, real or personal, which is mortgaged to another person, may be attached in a suit by a creditor, but the lien of the attachment is subject to the mortgage.

Section 709.-CREDITOR LIABLE FOR UNLAWFUL ATTACHMENT.-A creditor who makes an unlawful attachment, or causes it to be made, will be liable in damages for all injury done to the person whose property

is attached. If the holder of an obligation sues upon it, and causes an attachment to be issued and placed upon property of the debtor, as upon household furniture, or farming utensils, or horses, or cows, exempt by law from execution, he will be liable for all damages sustained by the unlawful seizure. His sureties on the attachment bond are liable to the extent of their bonds only, but he is liable to the full extent of the injury. The debtor may have the attachment released, upon the ground that the property attached is exempt, and bring a suit for damages against the creditor and his bondsmen.

Section

710.-CREDITOR

ATTACHING PER

SONAL PROPERTY MUST PAY MORTGAGE.—It has already been shown that mortgaged property may be attached by a creditor of the owner, subject to the mortgage. Personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor of a mortgagor; but before the property can be taken, the officer levying the attachment or execution must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the money with the County Clerk or Treasurer, payable to the order of the mortgagee.

Civil Code, Section 2969.

Section 711.-GARNISHMENT.-There are certain effects of a debtor which cannot be seized and taken into the custody of the officer, but which may still be rendered liable to the payment of the debt, such as money owing to the debtor by a third person, or property in the hands of a third person belonging to the debtor. In a suit by the creditor against the debtor, the officer serves a notice upon the person owing the debtor, or having property of the debtor in his hands, that such property is attached, and this is called garnishment. The person upon whom the notice is served is called the garnishee. Thereafter, he cannot pay his debt to the defendant, nor deliver the property to him, but must hold it to await the result of

the suit. In this State, when required by the officer the garnishee must make a statement of the amount owing by him to the defendant, or showing the character and description of the property in his hands belonging to the defendant.

Section 712.-FOR WHAT PROPERTY GARNISHEE LIABLE.—The garnishee will be held liable for all personal property in his hands belonging to the defendant which is capable of being seized and sold upon execution. The garnishee will be liable for money in his hands belonging to the defendant, and a garnishment may be levied upon a bank or corporation, as well as upon an individual. The property must be in the actual possession of the garnishee, or within his control, so that he may be able to turn it over to the officer on execution.

Section 713.-MONEY DUE AS SALARY TO PUBLIC OFFICER.-The salary of a public officer can be attached or garnished. When a judgment is obtained against a public officer, a transcript of it may be filed with the State Controller or County or City Auditor, and so much of the officer's salary as is not exempt from execution shall be then paid over to the judgment debtor. (Statutes of 1903, page 362.) A decision has been made by the Supreme Court in a test case under the statute of 1903. A suit was brought in San Francisco to compel the Auditor to allow the salary of a public officer, but he refused on the ground that a part of the money had been attached under the new law. The Supreme Court decided that the law is constitutional, and that it will stand good as to all public officers and employees created or provided for by the Legislature. Therefore, when the Auditor pays the money due, from the State, or city, or county, into court, so much as is not exempt from execution must be paid to the judgment creditor. (Decided by the Supreme Court of California, in the case of Ruperich vs. Baehr, which decision is printed in Volume 27 of California Decisions, No. 1465, page 359.)

Section 714.-MONEY IN THE HANDS OF THE LAW.-Money in the hands of the law, as money in the hands of a sheriff, or constable, or money deposited with a clerk of court to wait the determination of a suit, or money in the hands of a Receiver appointed by the court, cannot be taken by garnishment or attachment; for all such property is in the custody of the law, and until the law has done with it, no interference from any other source will be tolerated or allowed.

Section 715.-ATTACHMENT OF PARTNERSHIP PROPERTY.-Partnership property may always be attached for partnership debts. But a more serious question arises, where one partner owes debts and is sued by his creditor, outside of the partnership business. The decisions of the courts in different States have not been uniform, but in California the law appears to be settled, that a creditor of one partner may have an attachment levied upon the partnership property. The sheriff must take the whole property into his possession, but he cannot sell on execution the interests of both partners; he can only sell under the execution the interest of the partner against whom the judgment was obtained.

Section 716.-DISSOLUTION OF ATTACHMENT. -If an attachment has been improperly or irregularly issued, by the court in which the suit was brought, it will be discharged on motion of the defendant. If an attachment is issued in a case where the law does not provide for an attachment, or if the plaintiff's complaint does not state a cause of action, or if other necessary papers essential to obtain a Writ of Attachment are fatally defective, the attachment will be held to be improperly or irregularly issued and the defendant will have a right to ask for the discharge of the attachment.

Section 717.-BOND FOR RELEASE OF ATTACHED PROPERTY.-The defendant in a suit, whose property is attached, may have the attachment released by

giving a bond, in a sum to be fixed by the court, with at least two sureties, as security that the property released will be re-delivered to the proper officer if the plaintiff recover a judgment in the action; or that, if the property is not turned over to the officer, that the sureties will pay to the plaintiff the full value of the property released.

Code of Civil Procedure, Section 555.

at

Section 718.-LIEN OF ATTACHMENT.-The tachment will be a lien upon all real property attached for a period of three years after date of levy, unless sooner released or discharged by dismissal of the suit or by entry of judgment. The time may be extended, by the court, upon motion made not less than five nor more than sixty days before the expiration of the three years.

Act of the Legislature, approved March 25, 1909.

Judgments and Executions.

Section 719-JUDGMENTS.-Whether any property is attached or not, a judgment may be obtained for the amount due, and costs of suit, and upon the judgment an execution is issued from the court in which suit is brought, directed to the Sheriff, and commanding that officer to sell enough of the debtor's property to pay the debt. All property not exempt from execution may be sold by the Sheriff and applied to the payment of the judgment. All sales of property under execution are made at public auction to the highest bidder.

Section 720.-JUDGMENT A LIEN ON REAL PROPERTY.-When a judgment is rendered in a suit in the Superior Court, the Clerk of the Court enters the judgment in his official records, and makes up what is called a Judgment Roll, attaching together and filing the pleadings and certain other papers, for that purpose. Immediately after filing the Judgment Roll, the Clerk of the Court makes the proper entry of the judgment in the docket kept by him;