12 Cal. 11 | Cal. | 1859
delivered the opinion of the Court—Terry, C. J. concurring.
Plaintiff recovered a judgment in the District Court of Nevada county, in October, 1854, for a sum of money. The judgment was in an equitable suit brought to dissolve a copartnership and settle the firm accounts, and for a decree for the balance due. The records of Nevada were consumed by fire before the institution of this suit, and the papers and minutes of the Court evidencing this judgment destroyed. An action at law is now brought to recover the amount of this judgment or decree. Several questions are made :
1. That suit cannot be maintained in this State on a domestic judgment. At common law, actions could be so maintained. (1 Ch. PI. 103-4.) There is nothing in our statute which divests the right; and the policy and inconvenience, suggested by the appellant, applied as well in England as here. The chief argument is, that there is no necessity for a right of action on a judgment, inasmuch as execution can be issued to enforce the judgment already obtained, and no better or higher right or advantage is given to the subsequent judgment. But this is not true in fact, as in many cases it may be of advantage to obtain another judgment in order to save or prolong the lien; and in this case the advantage of having record evidence of the judgment is sufficiently perceptible. The argument that a defendant may be vexed by repeated judgments on the same cause of action, is answered by the suggestion that an effectual remedy to the .party against this annoyance is the payment of the debt.
3. The last objection is, that no action can be maintained at law upon a decree in equity for a specific sum of money. The action in the case before us may be considered to be in debt, or as an action in the nature of the action of debt, under the old system. This action was proper whenever a sum liquidated and made definite by contraqt or judgment was recoverable, and we are not able to perceive why a recovery in equity for a certain and ascertained amount is no.t as legitimate a basis for action as a judgment at law. Some of the most respectable Courts in the Union have so adjudged, and we think properly. See 15 Mass. 196, and other cases cited therein.
The judgment is affirmed.
