Bullard v. McArdle, 33 P. 193

Bullard v. McArdle

33 P. 193

Cal.

1893

Check Treatment

Harrison, J. —

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 recоrd 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, оbtained an order dismissing the appeal, upon the ground that the papers on appeal had not been filed. The appeal when filеd 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 Octobеr the superior court made an order vacating its previous order dismissing the appeal and recalling the execution that had been issued оut 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 cеrtain cattle of the plaintiff to the defendants herein, and immediately after the sale the plaintiff herein demanded the property from the dеfendants, 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 рroperty 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-

*358ment the plaintiff has become authorized to satisfy the amount therein named out of the defendant’s property, and the law designates the shеriff as his agent to effect this result. The sheriff is, however, but the agent of the plaintiff in making the satisfaction, and can exercise no greater power therefor than could the plaintiff' himself. Unless there is a valid judgment in existence, neither the plaintiff himself nor the sheriff has any authority to deprive the defendant of his property. Even though there was a judgment in existence at the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍time the writ of execution was issued, yet, if it has been vacated or satisfied bеfore any sale is made under the execution, the power to make the sale has also been destroyed; and it is immaterial whether the judgment wаs directly satisfied or vacated, as by payment, or an order of court, or indirectly, as by granting a new trial in the action, or by an appeal whose effect is to prevent its execution. A different rule obtains when the judgment is vacated or appealed from after a sale of prоperty under its authority. In such a case the bona fide purchaser is not affected even by a reversal of the judgment. It is, however, always incumbent upon the purchaser to see at his peril that there is a valid judgment in existence at the time he makes his purchase. (Hermann on Executions, sec. 255; Wood v. Colvin, 2 Hill, 566; 38 Am. Dec. 598; Frost v. Yonkers Sav. Bank, 70 N. Y. 553; 26 Am. Hep. 627; McClure v. Logan, 59 Mo. 234.) “The sheriff, in making sale of property under process of the court, acts under a power, and if the power does nut exist, no title passes, even ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to аn innocent purchaser. He who buys under a power buys at his peril, and acquires no title without showing a valid, subsisting power.” (Carpenter v. Stilwell, 11 N. Y. 71.) “The judgment was the sole foundation оf the sheriff’s power to sell and convey the premises, and if the judgment was paid when he undertook to sell and convey, his power was at an end, and all his acts were without authority and void. The purchaser under a power is chargeable with notice if the power does not exist, and purchases at his peril.” (Craft v. Merrill, 14 N. Y. 461.)

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 *359justice’s court was not merely suspended, but by the removal of the record was vacatеd and set aside. (Thornton v. Mahoney, 24 Cal. 569; People v. Treadwell, 66 Cal. 400.) When the effect of an appeal is to transfer the entire record to the appellate court, and to cause the action to be retried in that court as if originally brought therein, as is the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case when appeals are taken from a justice’s court upon questions of law and fact, the judgment appealed from is completely annulled, and is not thereafter available for any purpose. (Bank of North America v. Wheeler, 28 Conn. 441; 73 Am. Dec. 683; Campbell v. Howard, 5 Mass. 376; Levi v. Karrick, 15 Iowa, 444; Keyser v. Farr, 105 U. S. 265.)

Thе 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 undeterminеd 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 necessаry 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 thе 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 chargеd with notice of the proceedings in that court, and that the judgment had been appealed from prior to the issuance of the executiоn. 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 *360that court to find support for the issuance of the execution. They could not rely upon the fact that a copy оf the order dismissing the appeal had been filed in the justice’s court. They assumed at their risk the regularity of that order, as well as any subsequent procеedings iu the superior court, and the ignorance of the subsequent order vacating it is not available to them in their attempt to retain the proрerty of the plaintiff herein, which they purchased in reliance upon the order of dismissal.

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.