41 Cal. 253 | Cal. | 1871
The motion made by Murdoch to set aside the execution and to perpetually stay all other proceedings upon the personal judgment against him, was correctly denied.
The motion proceeded upon the assumed ground that the judgment itself was not merely erroneous, but was utterly void—so much waste paper—and to be treated as a mere nullity whenever and however assailed.
The subject, matter of the action was a claim asserted by the plaintiffs for stre’et work in San Francisco, and which was alleged in their complaint to have been assessed upon a certain city lot, of which Murdoch was averred to be owner. Murdoch appeared in the action and made defense. Here, then, was jurisdiction of the subject matter and of the person, and, these conditions conceded, the decision of all other questions arising in the case is but the exercise of that jurisdiction, and an erroneous decision of any of these other questions could not impair the validity and binding force of the judgment when brought in question collaterally.
One of the questions, and the first one in natural order, for determination at the trial of the action had in the Court below, was as to whether or not the plaintiffs had any claim to be paid. That being determined in their favor, then came the question of its amount. Upon that being ascertained, the quo modo of its enforcement unavoidably presented itself for the judgment of the Court. Murdoch was thereupon adjudged to be personally liable for any deficiency which might remain after the proceeds of the sale of the lot should be exhausted, and execution was accordingly directed to issue against his property therefor.
This was a decision upon the quo modo. The judgment of the Court might have disposed of the question in some other way. It might have limited the plaintiffs to the proceeds of the sale of the lot, or it might have adjudged Murdoch to
Section one hundred and forty-seven of the Practice Act has no application to questions of jurisdiction. A judgment rendered by the Court in a cause in which it had jurisdiction of the subject matter and of the person, even though it might exceed the measure of relief demanded in the complaint, and no answer had been filed, would not be void for that reason, but erroneous merely.
The appeal from the judgment is dismissed, and the order of the Court below affirmed.
[The appellant, Murdoch, had previously brought an action to enjoin the judgment upon which the execution was issued. The case is reported in 37 Cal. 527.—Reporter.]
