191 P. 900 | Cal. | 1920
This is an appeal from a judgment entered in favor of the plaintiff, the Heine Piano Company, a corporation, and against the said defendants, G.C. Ringolsky, Frank T. Deasy, James G. Conlan, Robert W. Dennis, and Kohler Chase, a corporation, in an action brought (1) to vacate the satisfaction of a judgment rendered in favor of the present plaintiff and against defendants Charles and Laura Olson in an action — hereinafter referred to as action 76,831 — in the justice's court of the city and county of San Francisco, and to revive said judgment; (2) to have said judgment "offset, . . . against the judgment in action 85,133 [in said justice's court] to the extent that one judgment *400 equals the other"; and (3) to restrain defendants from issuing execution in action 85,133. Judgment was entered on November 8, 1917, granting the relief prayed and continuing the action for further proceedings as against defendants J.M. Bloomer, Charles and Laura Olson, John Doe, Richard Roe, Cornelius Coe, and Henry Hoe. Defendants Bloomer, Ringolsky, Deasy, Conlan, Dennis, and Kohler Chase prosecute this appeal, the record of which is presented under the alternative method.
[1] These last-named defendants also appeal from the order denying their motion for a new trial, but, inasmuch as the notice of appeal was filed after the amendment of 1915 to section 963 of the Code of Civil Procedure, the appeal from the order refusing a new trial must be, and is hereby dismissed. (Roberts v. Colyear,
On May 25, 1915, plaintiff commenced action 76,831 against the Olsons for the sum of $250 alleged to be owing at the time by them to the Heine Piano Company. On June 28th, the Olsons having failed to appear, judgment by default was entered against them for $303.65, which sum included costs. On June 30th, "without the consent or knowledge of or any notice other than constructive notice to the plaintiff," Laura Olson executed and recorded a declaration of homestead and a homestead lien on the land upon which they were residing on Rhode Island Street in San Francisco. On November 29th a writ of execution was issued in action 76,831 to the sheriff of the city and county of San Francisco, and, by virtue of that writ, on December 27th the sheriff sold said Rhode Island Street property to one A.G. Mitchell, who is admitted to have been plaintiff's agent in the transaction. On January 12, 1916, the writ of execution was returned, satisfied.
On March 17, 1916, action 85,133 was commenced against the plaintiff in the justice's court of the city and county of San Francisco in the name of Miss J.M. Bloomer, who, it appears, was a stenographer in the office of G.C. Ringolsky. The plaintiff in that action, as assignee of the Olsons, alleged that the Heine Piano Company was indebted to Laura Olson in the sum of $250 "for goods, wares, and merchandise sold and delivered." The action *401 went to trial, and on September 27th judgment was rendered in favor of Miss Bloomer and against the Heine Piano Company for $259.95. An appeal from that judgment was taken by plaintiff herein, but, an exception to the sureties having been filed, and the said sureties having failed to justify within the time allowed by law, on December 22d the appeal was dismissed. A petition to the district court of appeal for a writ of review was denied.
On March 19, 1917, Mitchell having in the meantime transferred to G.O. Heine, plaintiff's president, all the right, title, and interest which he had acquired in or to the Rhode Island Street property at the execution sale, said Heine, in behalf of the plaintiff, executed a deed conveying back to the Olsons all the right, title, and interest which either he or the corporation had in said real property.
On March 22d plaintiff moved in the justice's court where the judgment in action 76,831 had been rendered for an order vacating, canceling, and setting aside the satisfaction of said judgment, on the ground that the entry of satisfaction was a mistake, the execution having been levied upon real property which was exempt as a homestead, and on the further ground of ignorance on the part of the plaintiff of the existence of such a homestead at the time of the execution sale.
On March 27th Heine Piano Company moved in action 85,133 for an order offsetting the judgment in that action against the judgment in action 76,831 on the grounds that Miss Bloomer, in whose name the judgment in action 85,133 stood, was not the real party in interest but was the Olsons' assignee for collection only, that the Olsons were the true owners of the Bloomer judgment, and, therefore, that their judgment, being less than that in action 76,831, should be offset and canceled.
On April 3d defendant Deasy made an order denying plaintiff's motion to vacate the satisfaction of judgment in action 76,831, the order reading in part: "Thereupon defendants object to further hearing herein on the ground that the issues raised by said motion involve a decision on the title to real estate of which this court has no jurisdiction. . . . The court does now sustain said objection and on the ground of lack ofjurisdiction denies the plaintiff any further hearing on its said motion." (Italics ours.) *402 On April 4th defendant Conlan made a second order in action 76,831, denying plaintiff's motion to vacate on the merits. This last order was entered on April 5th.
On April 4th defendant Conlan denied the motion made by plaintiff in action 85,133 to offset that judgment against the one in action 76,831. On the same day plaintiff commenced this action.
At the conclusion of the plaintiff's case defendants moved for a nonsuit, but the motion was denied. The contentions made by appellants in their opening brief are the same as the grounds urged for a nonsuit: "1. The matters in issue at bar were previously determined by courts of competent jurisdiction, and hence are to be treated as res judicata. 2. The complaint does not show any equity. 3. The plaintiff . . . was guilty of laches in asking for the relief prayed."
1. In support of their first contention appellants assert "that all of the matters and showing made in the justice's court and upon which the justice of the peace based his decision were the same as the facts alleged in this action." First, as to the order denying the motion to vacate the satisfaction of judgment in action 76,831. Even if the correctness of the statement just quoted be assumed for the purposes of this discussion, it is not decisive of this question, for appellant's position ignores the fact that the order denying the motion was not the order entered on April 5th, which purported to deny the motion without stating the grounds, but was the order made and entered on April 3d, in which the court refused to grant the motion because of lack ofjurisdiction. [2] In other words, by the making of the order of April 3d the power of the court to rule on the motion to vacate became functus officio. As is said in Freeman on Judgments, section 70, "the law does not authorize the correction of judicial errors under the pretense of correcting clerical errors. . . . It is certain that proceedings for the amendment of judgments ought never to be permitted to become revisory or appellate in their nature; ought never to be the means of modifying or enlarging the judgment or the judgment record, so that it shall express something which the court did not pronounce, even though the proposed amendment embraces matter which ought clearly to have been so pronounced." (See, also,Byrne v. Hoag,
As to the effect of this order as res judicata on the plaintiff's rights, section
We now turn to a discussion of the effect of the order denying the motion to offset the judgment in action 85,133 against that rendered in action 76,831. That order reads in part: ". . . it appearing to the court that the judgment *405 in action 76,831 . . . has been heretofore satisfied and discharged, and it further appearing to the court that the said J.M. Bloomer has no legal or equitable interest in or to said judgment . . ., the court hereby orders that the motion be and the same is hereby denied." It is at once apparent that the basis of the court's ruling in this instance, as well as in the case of the motion to vacate, was lack of jurisdiction, for at the time the motion to offset was made the judgment in action 76,831 had been marked "satisfied" and had not been revived, so that there was no existing judgment in action 76,831 which could be offset against the judgment in action 85,133. [4] It must be held, therefore, under the rule already referred to, that neither the question whether the plaintiff is entitled to have the satisfaction of its judgment vacated, nor the question whether plaintiff is entitled to have that judgment offset against the one in action 85,133, is res judicata.
2. We shall next consider appellants' second contention that "the complaint does not show any equity." The claim is made in their brief that "the court lacked jurisdiction to hear and determine the issues in this case. . . . A court of equity cannot assume the powers of appellate jurisdiction to review the errors of the lower court." In stating the rule on this point we cannot do better than quote from Uhlfelder v. Levy,
We shall next consider the question whether the plaintiff was entitled to the relief granted, and in this connection we shall first inquire whether it was entitled to a decree vacating the satisfaction of judgment in action 76,831. The rule is thus stated in the note to Sturdivant v. Ward (Ark.), 134 Am. St. Rep. 36: "We cannot suggest a better solution [of this question] than the general adoption of some such declaration of the law as has been enacted in California: Code of Civil Procedure, section 708 '. . . If the purchaser of property at sheriff's sale . . . fail to recover possession . . . because the property sold was not subject to execution and sale, the court having jurisdiction thereof must . . . revive the original judgment.' The section has been construed and applied in the well-known case of Cross v. Zane,
Now, as to whether plaintiff was entitled to have that judgment offset against the one in action 85,133. Appellants claim "that Kohler Chase, the assignor of Bloomer, has been and still is the real and beneficial owner of the Bloomer judgment," and that the court's finding that the Olsons were the owners thereof is without support in the evidence. Upon this point Mrs. Olson testified that she had purchased a piano from Kohler Chase on the installment *408 plan, and that she had assigned her cause of action against the plaintiff to Kohler Chase upon the understanding that if anything was recovered upon said cause of action "that money would go off the piano." She did not claim that she was to be given unconditional credit for the sum alleged to be due and owing from the Heine Piano Company, but only for such amount as Kohler Chase might recover. In our opinion the court was justified in finding that the Olsons, and not Kohler Chase, were "the real and beneficial owners" of the claim, the latter merely having the legal title for the purposes of suit.
3. Appellants insist that plaintiff was guilty of laches (1) "in its defense in action 85,133. . . . In the answer nothing was alleged by way of defense or counterclaim setting forth the judgment in action 76,831." There are two answers to this contention. Section
Since the matters here in issue are not res judicata, and equity will relieve the plaintiff from the "satisfaction," it follows that the judgment should be affirmed.
Shaw, J., Olney, J., Wilbur, J., Lennon, J., and Angellotti, C. J., concurred.
Rehearing denied.
All the Justices concurred.