16 Cal. 200 | Cal. | 1860
Cope, J. concurring.
The plaintiff seeks to enjoin the enforcement of a judgment rendered against him by default in June, 1855, and bases his claim to the relief upon the absence of the seal of the District Court to the summons issued in the action in which the judgment was entered, the alleged defective certificate of the Sheriff of the service of the summons and copy of the complaint, and irregularities of the Clerk in entering the judgment. If, for any of these reasons, the judgment be absolutely void, as contended by counsel, the appellant has a perfect remedy, by application to the District Court to quash the execution. That Court can, at any time, arrest all process issued by its Clerk on judgments which are void. If the judgment in question be not absolutely void, and the defects alleged be mere irregularities, to be reached by motion before judgment, or on appeal, the complaint is insufficient. It does not aver that the plaintiff has ever paid the claim for the recovery of which the action was brought, or that he has any valid defense to the same. (See Chipman v. Bowman and Gregory v. Ford, decided at the October term, 1859, and Gibbons v. Scott et al., decided at the January term, 1860.)
Judgment affirmed.
