680. (668.) Order to inferior court for transcript and papers.664. Any appellate court shall have full power to compel any inferior court, board, or officer exercising judicial functions, or other person, to certify to such court a full and complete transcript of the records and proceedings of any such tribunal, board, officer, or person, and the production of any paper, whenever it shall be necessary for the proper determination of any cause or proceeding pending before the appellate court. The breach of any order may be punished as a contempt.

A defective transcript can only be corrected by a certiorari. Sumner v. Goings, 74 Ind. 293; Figurt v. Halderman, 59 Ind. 424.

Applications for certiorari must be verified, unless the defect is apparent from the record. Peoria Co. v. Walser, 22 Ind. 73.

Ten days' notice is required of an application for a certiorari. Durbin v. Haines, 99 Ind. 463.

The writ of certiorari will be granted to either party, or the court may award it of its own motion. Kesler v. Myers, 41 Ind. 543.

A certiorari will not be awarded after a cause has been decided. Railroad Co. v. Van Houten, 48 Ind. 90.

A record can not be amended by affidavits. Lytle v. Lytle, 37 Ind. 281.

Papers certified by the clerk not in answer to a certiorari are not parts of the record. Mitchell v. Stinson, 80 Ind. 324.

681. (669.) Reversal-Effect upon title.-607. The reversal of any judgment by virtue of which any real estate has been sold or transferred, or the title thereto affirmed, shall not avoid the sale, transfer, or title, if the person to be affected thereby shall be, or claim under, a purchaser in good faith, and not a party to the record or attorney of any party.

The reversal of a judgment does not avoid a sale under it to a purchaser in good faith, or to the grantee of such purchaser. Smith v. Anthony, 16 Ind. 267; Frakes v. Brown, 2 Blkf. 295.

If the purchaser is a party to the record, a reversal of the judgment avoids the sale. Hutchens v. Doe, 3 Ind. 528.

This section applies only to judicial sales, and not to purchasers of land in controversy from a party to the suit. Dunnington v. Elston, 101 Ind. 373.

682. (670.) Restitution impossible-Remedy of defendant.-608. In every case of a sale, transfer, or confirmation of real estate upon execution or by judgment, where the defendant can not have restitution of his estate, he shall be entitled to recover of the judgment plaintiff the full value of the estate with interest, when the judgment plaintiff has purchased the estate, or had the same confirmed or transferred to him; and when the land has been sold by the sheriff to any other person, he may recover the proceeds of the sale, with interest, deducting the amount applied to the costs of the judgment defendant. When a judgment is reversed, the defendant may recover the money paid on the judgment, or the value of the property sold thereunder. Glover v. Foote, 7 Blkf. 293; Martin v. Woodruff, 2 Ind. 237; Smith v. Zent, 83 Ind. 86; Zent v. Smith, 83 Ind. 442.

683. (671.) Restitution.-609. In every other case of a reversal

of any judgment, by virtue of which any real estate has been sold or transferred, or the title confirmed, the judgment defendant shall have restitution thereof as follows:

684. (672.) Notice of motion for restitution.-610. He may notify the purchaser or his tenant, or other person in possession, that at the next term he will move the court which rendered the judgment to restore to him the possession of the premises.

685. (673.) Hearing and judgment.-611. Upon proof that the notice has been served ten days, the court may proceed to hear and determine the issues made by the parties, and render judgment accordingly, or the judgment defendant may recover his real estate by the ordinary action.

ARTICLE 26.-EXECUTION.

SEC.

686. Writs of.

687. After ten years-Upon leave.
688. Three kinds of.

689. Execution docket-Contents.
690. Precipe for execution and fee-bill.
691. Judgments, how enforced.

692. No execution against body or prop-
erty, when.

693. To whom issued.

694. Requisites of.

695. Time of return.

696. When may issue on Sunday.

697. Indorsement of clerk on such writ. 698. Lien on chattels When first levy preferred.

699. Sheriff's successor to execute writ, when.

700. Alias execution.

701. To another county-Lien from levy.
702. Stay of-Time.

703. Bail, how taken-Its effect.
704. Clerk to notify sheriff-Return.
705. Clerk's indorsement on repleviable
judgment.

706. Stay for residue.

707. Recognizance where copied.

708. Property levied on to be relinquished. 709. Bail-Effect of judgment confessed. 710. Joint execution.

711. When stay not allowed-Return lim

ited.

712. Sureties may prevent stay-Excep

tion.

713. When bail may have execution. 714. Entry of other bail-Its effect. 715. Exemption, six hundred dollars.

SEC.

819. Oath, how taken.

820. Time and place of oath-Notice to creditor.

821. Creditor may examine prisoner.

822. Discharge.

823. Disposition of property.

824. Return of sheriff.

825. Effect of death of prisoner.

826. Proceedings upon escape.

827. Judgment debtor, when required to answer after return.

SEC.

828. Judgment debtor when required to
apply property after execution.

829. Order of arrest and bail, when had.
830. Bond, when required.
831. Other persons required to answer,
after issue and return.

832. Witnesses and examination.
833. Orders of court as to property.
834. Costs-Proceedings summary.

686. (674.) Writs of.-479. Writs of execution, as now used for the enforcement of judgments, are modified in conformity to this act; and any party in whose favor judgment has been heretofore or shall hereafter be rendered may, at any time within ten years after the entry of judgment, proceed to enforce the same as provided in this act. An execution upon a void judgment is a nullity; otherwise, upon a voidable judgment. Dawson v. Wells, 3 Ind. 398; Doe v. Harter, 2 Ind. 252.

Execution may issue as soon as the entry of judgment is signed. Willson v. Binford, 54 Ind. 569; Jones v. Carnahan, 63 Ind. 229.

Irregularity in the issuance of an execution can only be objected to by the judgment defendant, and by him only in a direct proceeding. Jones v. Carnahan, 63 Ind. 229; Leonard v. Broughton, 120 Ind. 536.

The issuing of an execution before a former levy is disposed of renders the execution voidable, but a sale thereunder is valid. Richey v. Merritt, 108 Ind. 347.

Failure of the clerk to attach the seal to an execution renders the same voidable only. Warmoth v. Dryden, 125 Ind. 355.

Executions may be issued after judgments have ceased to be liens on lands. Yeager v. Wright, 112 Ind. 230.

Executions can only issue from the courts where the judgments were rendered. Shattuck v. Cox, 97 Ind. 242.

687. (675.) After ten years-Upon leave.-480. After the lapse of ten years from the entry of judgment or issuing of an execution, an execution can be issued only on leave of court, upon motion, after ten days' personal notice to the adverse party, unless he be absent or nonresident or can not be found, when service of notice may be made by publication, as in an original action, or in such manner as the court shall direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment or some part thereof remains unsatisfied and due.

Execution may issue upon an existing judgment against a defendant constructively summoned. Gibson v. Green, 22 Ind. 422.

An execution may be obtained under this section by giving notice to the debtor and proving that the judgment is unpaid. Simpson v. Wilson, 16 Ind. 428; Reeves r. Plough, 46 Ind. 350.

No pleadings are necessary. Van Devanter r. Nixon, 5 App. 304.

The judgment need not be made a part of the motion. Verden v. Coleman, 23 Ind. 49. The debtor may show that the judgment has been paid. Kiser v. Winans, 20 Ind. 428; Reeves v. Plough, 46 Ind. 350.

This section only applies where the judgment debtor is alive. Decker v. Gilbert, 80 Ind. 107; Faulkner v. Larrabee, 76 Ind. 154.

The proceeding must be instituted in the same court where the judgment was rendered. Conner v. Neff, 2 App. 364.

This section applies to judgments rendered before its passage. ton, 120 Ind. 536.

Leonard v. Brough

An assignee of a judgment may have execution under this section. Martin v. Orr, 96 Ind. 491.

An execution can not be obtained after the lapse of twenty years. Strong v. State, ex rel., 57 Ind. 428.

If the judgment has ceased to be a lien the obtaining of an execution will not revive it. Applegate v. Edwards, 45 Ind. 329.

If the execution is issued without leave of court, it is voidable, but not void. Yeager r. Wright, 112 Ind. 230.

On the hearing of the motion, the plaintiff should be examined orally as a witness: his ex parte affidavit is not competent. Simpson v. Wilson, 16 Ind. 428.

The parties are entitled to a change of venue. Jaseph v. Schnepper, 1 App. 154.

688. (676.) Three kinds of.-482. There shall be three kinds of executions—one against the property of the judgment debtor, one against his person, and one for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same; and executions may be issued to the sheriffs of different counties. at the same time; but the plaintiff shall pay the costs upon all executions not necessary to the collection of his judgment.

689. (677.) Execution docket-Contents.-591. The clerk of every court of record shall keep an execution docket, in which he shall enter all executions as they are issued by him, specifying, in proper columns, the names of the parties, the amount of the judgment, and the interest due at the issuing of the execution, and the costs, and prepare an additional column, in which he shall enter at length the return of the sheriff; and such docket entries shall be taken and deemed to be a record.

Hereunder, the sheriff's return is made a record, and the record imports “absolute verity," and can not be affected by parol evidence. Stockton v. Stockton, 59 Ind. 577; Fry v. Gallaspie, 61 Ind. 478.

All persons must take notice of the contents of the execution docket. Maddux ~. Watkins, 88 Ind. 74; Sanders v. Muegge, 91 Ind. 214.

690. (678.) Precipe for execution and fee bill.-501. No execution shall, in any case, be issued in any cause, except on the written precipe of a party to such suit, his representatives or assigns, or of his attorney of record; and no fee bill shall be issued, unless the same shall be ordered by the person to whom such fees, or a part thereof, are due, but the clerk shall receive nothing for any fee bill issued for his own fees.

Executions should not be issued without authority of the owner of the judgment. Lewis r. Phillips, 17 Ind. 108; Nunemacher v. Ingle, 20 Ind. 135; Watt v. Alvord, 25 Ind. 533.

A sale under an execution is not void because the execution was issued without lirections. Johnson v. Murray, 112 Ind. 154.