Cortez v. Superior Court

Citations

• 86 Cal. 274
• 24 P. 1011
• 1890 Cal. LEXIS 1020

Syllabus

<p>Enforcement of Judgment — Statute of Limitations — Fee of Commissioner in Partition — Lien upon Land Partitioned. — A decree in a probate proceeding for partition allowing the commissioner appointed to make partition a specified sum as a fee for his services and expenses incurred, and purporting to make it a lien upon the land and premises partitioned, is, so far as the commissioner is interested, a judgment for the recovery of money, and cannot be enforced by execution after the lapse of five years from the entry thereof, assuming the power of the probate court to declare it a lien and to award execution in satisfaction thereof against the land partitioned, which is doubtful.</p> <p>Id.—Construction of Code — Commissioner as “Party” to Judgment. — A commissioner in partition .who is allowed a fee for his services is a “ party in whose favor judgment was given, ” within the meaning of the word “party,” as used in section 681 of the Code of Civil Procedure.</p> <p>Id. — Suspension of Limitation — Stay of Proceedings. — An order staying proceedings upon a judgment and order of sale does not operate ,o suspend the running of the statute of limitations for the enforcement of the judgment.</p> <p>Id. — Excess of Jurisdiction — Writ of Review. — An order granting an execution upon a judgment awarded in the superior court, as a court of probate, after the lapse of five years from the entry of judgment, is in excess of the jurisdiction of the court, and will be annulled by the supreme court upon a writ of review.</p>