Ham v. Cunningham

50 Cal. 365

Opinion

By the Court:

The judgment against Sturgeon for the recovery of money was rendered August 23, 1872, and he departed this life on the second day of September following.

No execution on the judgment was issued during the lifetime of Sturgeon, and under the two hundred and fifteenth section of the former practice act, an execution upon a judgment of this character could not be issued after his death. Inasmuch as by reason of his death no execution could be legally issued upon the judgment rendered against him, the attachment, therefore, issued in the action became inoperative.

This was held in the case of Myres v. Mott (29 Cal. 367), in which we said, in substance, that whenever by reason of the death of the defendant the case became such that an execution could not be legally issued, the attachment-lien must of necessity cease.

Judgment affirmed.