A judgment for costs is as much the property of the plaintiff as a judgment for the debt sued for, though he may be liable by fee-bill for such costs. Hays v. Boyer, 59 Ind. 341. Fee-bills may be issued at any time after the costs accrue, and they have the force of executions. Ferrier v. Deutchman, 51 Ind. 21.

Fee-bills may be issued during an appeal that stays proceedings on the judgment. Mackison v. Clegg, 83 Ind. 135.

609. (600.) Except divorce, when opened.-64. Parties against whom a judgment has been rendered without other notice than the publication in the newspaper herein required, except in cases of divorce, may, at any time within five years after the rendition of the judgment, have the same opened, and be allowed to defend.

Constructive service is by publication in a newspaper or by summons served out of the state. Sturgis v. Fay, 16 Ind. 429.

A defendant constructively summoned has a right to appear and defend at any time before judgment. Crews v. Cleghorn, 13 Ind. 438.

And may have the judgment set aside at any time within five years. Grayson v. Patterson, 7 Ind. 238.

The defendant may file an answer when the judgment is set aside, and may file additional answers afterwards. Bryant v. Richardson, 126 Ind. 145.

610. (601.) Notice of application.-65. Before any judgment shall be opened, such party shall give notice to the original complainant, or his heirs, devisees, executors, or administrators, of his intention to make application to have the judgment opened as the court, in term, or the judge thereof, in vacation, shall require; and shall file a full answer to the original complaint, and an affidavit stating that, during the pendency of the action, he received no actual notice thereof in time to appear in court and object to the judgment; and shall also pay all such costs of the action as the court shall direct.

A defendant having a judgment opened may demur to the original complaint. Smith t. King, 81 Ind. 217.

And he may file additional answers to those filed, when the judgment is opened. Bryant v. Richardson, 126 Ind. 145.

611. (602.) Bona fide purchasers not affected.-66. If any property which was the subject of, or property sold under, any judgment sought to be opened, as provided in the last two preceding sections, shall have passed into the hands of a purchaser in good faith, he shall not be affected by any proceedings consequent upon the opening of the judgment.

612. (603.) How assigned.-463. Judgments and decrees of a court of record for the recovery of money, and judgments obtained before a justice of the peace, may be assigned by the plaintiff or complainant, and the assignees thereof successively, on or attached to the entry of such judgment or decree; and the assignment, when attested by the clerk of the court or such justice of the peace, shall vest the title to such judgment or decree in each assignee thereof successively. To pass the legal title the assignment must be made as required by statute. Kelley t. Love, 35 Ind. 106.

There may be an equitable assignment of a judgment without complying with the

statute. Wood v. Wallace, 24 Ind. 226; Kelley v. Love, 35 Ind. 106; Eagle v. Ross, 67 Ind. 110; Adams v. Lee, 82 Ind. 587; Frybarger v. Andre, 106 Ind. 337. Lapping v. Duffy, 47 Ind. 51.

Part of a judgment may be assigned.

The assignment does not warrant the solvency of the debtor. Reid v. Ross, 15 Ind. 265.

The assignee takes the same subject to equities and defenses. Robeson v. Roberts, 20 Ind. 155; Eagle v. Ross, 67 Ind. 110; Lammars v. Goodeman, 69 Ind. 76; Foltz v. Wert, 103 Ind. 404.

The equitable assignee may sue on the judgment. Kelley r. Love, 35 Ind. 106; Shirts v. Irons, 54 Ind. 13.

The authority to assign a judgment may be conferred by a power of attorney. Caley v. Morgan, 114 Ind. 350.

The assignment of a judgment does not transfer the cause of action on which it was founded. Ward v. Haggard, 75 Ind. 381.

613. (604.) Payment to assignor, when valid.-464. Payments or satisfaction on such judgment or decree to the assignor shall be valid, if made before notice of assignment to the judgment debtor, but not otherwise.

614. (605.) Execution, when issued and indorsed.-465. In case of assignment, execution shall issue in the name of the original plaintiff or complainant, but shall be indorsed by the clerk or justice, to be for the use of the assignee.

615. (606.) Assignee may maintain action.-466. Any action which the plaintiff or complainant in such judgment or decree might have thereon may be maintained in the name of the assignee.

The equitable assignee of a judgment may sue thereon. Kelley v. Love, 35 Ind. 106; Shirts v. Irons, 54 Ind. 13.

616. (607.) Delivery-bond-Suit on judgment.-467. Bonds for the delivery of property levied upon by virtue of such execution shall be to the judgment plaintiff, for the use of such assignee; and all suits and proceedings relating to such judgment or decree, or against any officer on his bond for neglect of duty relating thereto, may be against, or on relation, or for the use of, such assignee, as the case may require.

617. (608.) Lien upon real estate-Ten years.-601. All final judgments in the supreme and circuit courts for the recovery of money or costs shall be a lien upon real estate and chattels real, liable to execution in the county where judgment is rendered, for the space of ten years after the rendition thereof, and no longer, exclusive of the time during which the party may be restrained from proceeding thereon by any appeal or injunction, or by the death of the defendant, or by agreement of the parties entered of record.

A certified transcript of a judgment of a court of record filed in the office of the clerk of the circuit court is a lien, from the time when filed, upon all the real estate of the defendant in the county. Julian v. Beal, 26 Ind. 220.

The lien does not attach until the transcript is recorded and the judgment entered in the judgment docket. Berry v. Reed, 73 Ind. 235; Bell v. Davis, 75 Ind. 314; Dufour v. Kious, 91 Ind. 409.

Transcripts of judgments of justices of the peace become liens from the date of filing,

and cease at the end of ten years from date of judgment. Brown v. Wuskoff, 118 Ind. 569; Mahoney v. Neff, 124 Ind. 380; American Co. v. Gibson, 104 Ind. 336.

Judgments are not liens on lands held by an equitable title. Gentry v. Allison, 20 Ind. 481; Jeffries v. Sherburn, 21 Ind. 112; Terrell v. Prestel, 68 Ind. 86; Conner v. Wells, 91 Ind. 197; Paxton v. Sterne, 127 Ind. 289.

Judgments are not liens on lands of the debtor where he holds the mere legal title in trust for his vendee. Jackson v. Snell, 34 Ind. 241; Warren v. Hull, 123 Ind. 126; Hays v. Reger, 102 Ind. 524.

Judgments are liens on lands of the debtor sold but not conveyed or paid for. Simpson v. Niles, 1 Ind. 196; Gaar v. Lockridge, 9 Ind. 92; Holman v. Creagmiles, 14 Ind. 177. Judgments are not liens on lands conveyed, but the deed for which is not recorded. Pierce v. Spear, 94 Ind. 127.

Lands held in trust are subject to the lien of judgments against the cestui que trust. Maxwell v. Vaught, 96 Ind. 136.

In actions on bonds payable to the state, the lien attaches from the commencement of the suit. Shane v. Francis, 30 Ind. 92; Day v. Worland, 92 Ind. 75; Fleenor v. Taggart, 116 Ind. 189; Leonard v. Broughton, 120 Ind. 536.

Judgments are only liens on lands in the county where the judgment is rendered. Baker v. Chandler, 51 Ind. 85.

If lands are purchased after the rendition of judgments, they all become equal liens. Michaels v. Boyd, 1 Ind. 259; Lowry v. Reed, 89 Ind. 442; Elston v. Castor, 101 Ind. Judgments rendered on the same day are equal liens. State, ex rel., v. Cisney, 95 Ind. 265.

426.

When the liens of judgments are equal, the execution first levied has priority. Lowry r. Reed, 89 Ind. 442; Elston v. Castor, 101 Ind. 426; Hollcraft v. Douglass, 115 Ind. 139. Personal judgments in actions of foreclosure become liens on all lands of the debtor. Fletcher v. Holmes, 25 Ind. 458.

Liens of judgments are subordinate to all prior legal or equitable liens. Wharton v. Wilson, 60 Ind. 591; Jones v. Rhoads, 74 Ind. 510; Foltz v. Wert, 103 Ind. 404; Wells r. Benton, 108 Ind. 585; Peck v. Williams, 113 Ind. 256; Warren v. Hull, 123 Ind. 126. The legislature may divest judgment liens. Gimbel v. Stolte, 59 Ind. 446; Houston r. Houston, 67 Ind. 276.

If the records of judgments are destroyed the liens cease until the records are reinstated. Sheldon v. Arnold, 17 Ind. 165.

Judgment liens are subordinate to liens for taxes. Jenkins v. Newman, 122 Ind. 99. Liens of judgments cease at the end of ten years, unless extended by causes mentioned in the statute. Castle v. Fuller, 17 Ind. 402; Applegate v. Edwards, 45 Ind. 329; Jones v. Detchon, 91 Ind. 154; Kinney v. Dodge, 101 Ind. 573; Shanklin v. Sims, 110 Ind. 143; McAfee v. Reynolds, 130 Ind. 33.

When collection is restrained by agreement of the parties, it must, as to time, be certain and definite. Ristine v. Early, 21 Ind. 103.

If, by agreement, time is given for the payment of a judgment, the ten years will not begin to run until the expiration of such time. Applegate v. Edwards, 45 Ind. 329; Crans v. Board, 87 Ind. 162.

The issuing of an execution does not extend the lien beyond ten years. Wells v. Bower, 126 Ind. 115.

An injunction to restrain the sale of lands will apply only to lands levied on, and will not extend the lien as to other lands. Shanklin v. Sims, 110 Ind. 143.

Liens on judgments acquired prior to marriage are superior to the interest of a wife. Eiceman v. Finch, 79 Ind. 511.

Judgments of the United States courts of this state are liens upon lands throughout the state. Simpson v. Niles, 1 Ind. 196.

The taking of a judgment on a judgment destroys the lien of the old judgment. Gould v. Hayden, 63 Ind. 443.

Payment of a judgment by one who is under a legal obligation to do so destroys the lien. Caley v. Morgan, 114 Ind. 350.

If a suit is brought to enforce a judgment lien, and pending suit the lien expires, junior liens will have priority. McAfee v. Reynolds, 130 Ind. 33.

618. (609.) Lien on bonds to state.-602. Judgments on bonds payable to the state of Indiana shall bind the real estate of the debtor from the commencement of the action.

See sections 1234 and 1792.

Sureties upon official bonds are debtors hereunder. Shane v. Francis, 30 Ind. 92; Fleenor v. Taggart, 116 Ind. 189.

This section applies to bonds given by administrators. Day v. Worland, 92 Ind. 75. The filing of an amended complaint does not destroy the lien created at the commencement of the suit. Fleenor v. Taggart, 116 Ind. 189.

If a judgment taken is illegal, and a subsequent one is taken, the lien relates to the commencement of the action. Leonard v. Broughton, 120 Ind. 536.

619. (610.) Transcripts to another county.-603. It shall be the duty of the clerk of any court of record of this state, rendering any judgment, to make out a certified copy thereof, under the seal of such court, at the request of any person interested; which copy may be filed in the office of the clerk of any circuit court of this state, and when so filed shall be recorded and entered in the judgment docket in the same manner as judgments rendered in any such court.

620. (611.) Lien of such judgments.-604. Such judgment, from the time of filing the copy aforesaid, shall be a lien upon all the real estate, including chattels real, of the judgment debtor, situated in the county where filed, as fully as if such judgment had been rendered thereon.

The liens do not attach until the transcripts are recorded and the judgments entered in the judgment docket. Berry v. Reed, 73 Ind. 235; Bell v. Davis, 75 Ind. 314; Dufour v. Kious, 91 Ind. 409; Davis v. Record, 80 Ind. 348.

These sections apply to superior courts. Bell v. Davis, 75 Ind. 314.

Executions must issue in the county where the judgments are rendered. Shattuck v. Cox, 97 Ind. 242.

The liens of such judgments expire at the end of ten years from the date of rendition. Bradfield v. Newby, 130 Ind. 59.

[Acts 1893, p. 43. In force February 18, 1893.]

621. Transcripts from United States courts.-1. That any person interested may file, or cause to be filed, in the office of the clerk of any circuit court of this state, a copy of any judgment rendered by the district or circuit courts of the United States, in and for the districts of Indiana, certified by the clerk of, and under the seal of such court of the United States, and when so filed the same shall be entered in the order-book and judgment docket in the same manner as judgments rendered in any such circuit court of the state of Indiana.

622. Lien.-2. Such judgment, from the time of filing the copy aforesaid, shall be a lien upon all the real estate, including chattels

real, of the judgment debtor situated in the county where filed, as fully as if such judgment had been rendered therein.

623. Fees of clerk.-3. The same fees shall be taxed, charged and received by the clerk of such circuit court for so filing, recording and entering such copy as are taxed, charged and received by him according to law, for filing, recording and entering transcripts of judgments, for like purposes, rendered by the courts of record of this state.

[1881 S., p. 240. In force September 19, 1881.]

624. (612.) Transcript from justice.-613. It shall be the duty of every justice of the peace in this state, when requested by the plaintiff or his agent, to make out and certify a true and complete transcript of the proceedings and judgment in any cause upon any docket legally in his possession. The plaintiff may file such transcript in the office of the clerk of any court in this state.

625. (613.) Recording-Docketing-Lien.-614. It shall be the duty of the clerk, forthwith, to record the transcript in the orderbook, and docket the judgment in the judgment docket. The judgment set forth in the transcript shall be a lien upon the real property of the defendant within the county, to the same extent as judgments of the court, from the time of filing the transcript.

The lien attaches from the time of filing of the transcript, and ceases at the end of ten years from the date of the judgment. Ball v. Barnett, 39 Ind. 53; Brown v. Wuskoff, 118 Ind. 569; Mahoney v. Neff, 124 Ind. 380.

626. (614.) Execution, how obtained.-615. Whenever the plaintiff shall also procure from the justice a certificate that an execution has been issued upon the judgment to the proper constable, and by him returned, indorsed that no goods or chattels could be found sufficient to satisfy the judgment or a part thereof, and file the certificate with the clerk, he shall record it in the order-book with the transcript; and, upon the plaintiff or his agent also filing with the clerk his affidavit that the judgment is unpaid in whole or in part, stating the amount due, he shall issue an execution upon the judgment, and indorse the amount to be levied of principal, interest, and costs; which execution shall be issued, served, and returned in the same manner as executions issued upon judgments of the court.

The issuing of an execution without an affidavit does not render the execution void, but only voidable. Mavity v. Eastridge, 67 Ind. 211.

The affidavit need not show non-payment to the clerk. Dehority v. Wright, 101 Ind. 382.

The certificate of the justice must show the issuing and return of an execution. Brown v. McKay, 16 Ind. 484.

In the absence of a contrary showing it will be presumed that a certificate was filed before the issuing of an execution. Fowler v. Griffin, 83 Ind. 297; Martin v. Prather, 82 Ind. 535.

The filing of the certificate may be proven by parol. Dehority v. Wright, 101 Ind. 382. If the transcript is filed after ten years from the date of the judgment, a sale thereunder to an innocent purchaser is valid. Martin v. Prather, 82 Ind. 535.