98 Cal. 355 | Cal. | 1893
A money judgment was recovered in the justice’s court against the plaintiff herein, on the 19th of July, 1889, from which on the same day he appealed to the superior court upon questions of law and fact, .giving a sufficient undertaking for the appeal, and to stay execution upon the judgment. The record on the appeal was filed in the superior court September 5, 1889, but on the 21st of October the plaintiff in the action, evidently not knowing that fact, obtained an order dismissing the appeal, upon the ground that the papers on appeal had not been filed. The appeal when filed had been numbered 2820 on the register of actions in the superior court, and the motion to dismiss the appeal, as well as the order of dismissal, were entitled as of a case No. 2909 on that register. On the next day after this order was made a certified copy thereof was filed in the justice’s court, and an execution upon the judgment appealed from was issued and placed in the hands of the officer for service. On the 29th of October the superior court made an order vacating its previous order dismissing the appeal and recalling the execution that had been issued out of the justice’s court, but no copy of this order was filed in the justice’s court. On the 7th of November the constable, by virtue of the execution, sold certain cattle of the plaintiff to the defendants herein, and immediately after the sale the plaintiff herein demanded the property from the defendants, and upon their refusal brought this action of claim and delivery. The property was delivered to him pending the action, and the court rendered judgment in his favor. The defendants moved for a new trial, which was granted, and the plaintiff has appealed from that order.
One who deraigns title to property through a sale under an execution must show, not only the execution and the sale, but also a valid judgment in support of the execution. (Blood v. Light, 38 Cal. 654; 99 Am. Dec. 441; Quirk v. Falk, 47 Cal. 453; Schuyler v. Broughton, 65 Cal. 252.) The sheriff in making the sale acts under a naked statutory power, dependent for its existence upon the existence of the judgment which he is attempting to execute, and if there is no judgment in support of the writ of execution, under which he makes the sale, the power to make the sale is wanting. By obtaining his judg-
By perfecting the appeal from the justice’s court the case was entirely removed from that court, and only the superior court had thereafter jurisdiction in the matter. The judgment in the
The order made by the superior court, vacating its previous order of dismissal, took from the execution that had been issued by the justice its entire vigor, and rendered the acts of the officer thereunder nugatory. The judgment upon which it was issued had been vacated by an appeal therefrom, which was sufficient both in form and in substance to divest the justice’s court of any further jurisdiction over the case. The case was thereafter in the superior court, and the rights of the parties were to be determined by the action of that court. Being a court of general jurisdiction, all its orders are attended with the presumption of regularity (Sharer v. Superior Court, 94 Cal. 354), and its order vacating its previous order of dismissal, and recalling the execution, left the cause undetermined and pending before it, as it'was when the appeal was first perfected. It was not essential to the validity of this order that it should be filed in the justice’s court. It was effective as soon as it was made. The defendant had done all that was required of him in taking the appeal, and it was not necessary for him to take any steps to protect himself from further proceedings in the justice’s court. It was, however, incumbent upon the purchasers at the sale, under the execution issued out of the justice’s court, to see that such execution was supported by a valid judgment, and they were charged with notice of the proceedings in that court, and that the judgment had been appealed from prior to the issuance of the execution. They were also charged with notice that the cause was thereafter pending in the superior court, and they were required to examine the proceedings of
Inasmuch as upon the uncontroverted facts in the case the decision could not have been different from that which was given at the trial, the order for a new trial cannot be sustained, and it is therefore reversed.
Garoutte, J., and McFarland, J., concurred.