27 Cal. 649 | Cal. | 1865
On the 16th day of November, 1861, the defendant, Smith, recovered a judgment upon a promissory note in the District Court for the County of Placer, against one D. B. Goode for the sum of four hundred and sixty-four dollars. At the date of said judgment said Goode was the owner of the lands .described in the complaint, which lands constituted his homestead. Subsequent to the entry of said judgment, an instrument of abandonment of said homestead was duly executed and acknowledged by said Goode and wife, and regularly recorded, and the premises were conveyed by said Goode and wife to plaintiffs; but whether tire abandonment and conveyance were contained in one instrument, does not appear. In October, 1863, subsequent to said conveyance, Smith procured an execution to be issued upon his said judgment against Goode, and placed it in the hands of the defendant, Gooding, Sheriff of Placer County, who was proceeding thereunder by the direction of said Smith to sell said lands. Plaintiffs thereupon commenced this action to restrain the sale, and thereby prevent the defendants from further clouding their title, and to procure a cancellation of the judgment as a fraud upon their rights. In addition to the foregoing facts, the - plaintiffs
The grounds of appeal are, that the facts alleged in the complaint, and found by the Court, are insufficient to entitle plaintiffs to the judgment rendered, or to any relief.
Goode, the defendant in the judgment vacated, is not a party to this action. He has made no complaint against the judgment. Of course the plaintiffs cannot interfere on his behalf, and they have no interest in the matter, except so far as the judgment lien may affect their property. They have no right to have the judgment absolutely vacated and annulled. The only question is, as to whether plaintiffs stand in such a relation to the judgment against Goode and the parties thereto, as to entitle them to the aid of a Court of equity to remove a judgment lien upon the land described in the complaint, and to an injunction against a sale under said judgment.
The judgment was in existence long before, and at the time plaintiffs took their conveyance, and they had record notice of
The complaint also alleges, that the premises in question were, on the twenty-third day of October, 1861, dedicated by Goode as a homestead in the mode prescribed by law, and that said premises at the date of said conveyance to plaintiff were still owned by said Goode, and occupied by himself, wife and family as a homestead, and that both said Goode and wife made, executed and delivered the conveyance therefor, and made the proper relinquishment of homestead in the' manner provided by law for the sale of homesteads. These allegations are not denied by the answer, and for the purposes of the action must be taken as true. Conceding that it sufficiently appears that the relinquishment of the homestead and the conveyance constituted one transaction, and took effect at the same moment of time, and that the value of the homestead did not, at the time of said relinquishment and conveyance, exceed five thousand dollars, the judgment, even if valid, never constituted a lien; for, while the title remained in Goode, there
In this case, as in many others, the appellant has overlooked the amendment of 1864 to section three hundred and forty-six of the Practice Act, and has consequently incurred double the expense necessary in making up his transcript on appeal. The transcript, it is true, is not voluminous, but it is still nearly or quite three times as large as necessary. As will be seen by referring to the amendment indicated, it is not necessary in all cases to bring up the entire judgment roll. In this case the original pleadings and summons might have been omitted, as no question arises on them. The amended complaint and answer thereto formed the issues tried. The entire first half of the transcript, therefore, is utterly useless here. And no' inconsiderable portion of the remainder is taken up
Attorneys, in making up their transcripts, by observing these suggestions, will still further greatly diminish the expense of making up and printing records, and thereby also facilitate the examination of the record on the part of the Court.
Judgment reversed and cause remanded, with leave to plaintiff" to amend his complaint, as he may be advised.
Mr. Justice Shafteb expressed no oqfinion.