169 P. 424 | Cal. Ct. App. | 1917
This is an appeal from a judgment in plaintiff's favor in an action brought to enjoin the sale of his property upon an execution issued upon a judgment of a justice's court rendered against the plaintiff herein in an action for work and labor, and also for goods furnished in connection with the operation of a mine, and which judgment defendant claims to be void.
The facts of the case are these: On or about January 29, 1909, W. A. Lloyd, one of the defendants herein, commenced an action in the justice's court of Mokelumne Township, county of Calaveras, against the plaintiff herein for three certain claims for work and labor, and goods alleged to have been furnished to said plaintiff and for which he had not been paid. Summons was duly issued and served in said action, and the defendant therein presently appeared by his attorney and filed a demurrer. The court, as affirmatively appears by its docket, set the hearing upon said demurrer for May 15, 1909, at 3 o'clock P. M. This date fell upon Saturday, and the stated time of hearing and trial of the issues of law raised by said demurrer was Saturday afternoon, which under the statute is a legal holiday. The defendant did not appear in person or by counsel at said time; but notwithstanding the foregoing facts the court proceeded to hear and overrule said demurrer and to order that defendant be given ten days to answer. The docket of the justice contains this entry: "Demurrer overruled. Defendant given ten days to answer, and so notified by U.S. mail." No answer being filed within the allotted time, judgment was rendered against the defendant for the sum of $215.75 and costs. No notice of the rendition of this judgment was shown to have been given the defendant, and nothing further was done in the case until somewhat more than a year later, when, as the justice's docket shows, the judgment was docketed in the judgment docket of the superior court of that county, and an execution was issued to the sheriff of Santa Clara County, which was on September 10, 1910, returned unserved. On April 13, 1913, the plaintiff in said former action caused another execution to be issued, directed to the sheriff of Santa Clara County, with an instruction to him to levy upon the property involved in this action, which was done. Thereupon and on May 13, 1913, the defendant in that action appeared in said justice's court and moved the court to set aside the said default and judgment, which motion the court denied, whereupon he instituted the present action to enjoin the levy *217 of said execution and the sale of his said property thereunder, setting forth in his complaint the foregoing facts, and further averring that he had no notice or knowledge of the rendition or entry of said judgment until the attempted levy of said last execution in May, 1913; and further alleging that he never owed said W. A. Lloyd anything, and that said Lloyd never had any cause of action against him and that he had a substantial defense to said former action upon the merits. The sheriff presented no defense to this action, but his codefendant, W. A. Lloyd, answered, and upon the issues thus tendered the trial court gave judgment in plaintiff's favor, from which judgment the defendant Lloyd prosecutes this appeal.
The paramount point presented upon this appeal is whether the judicial determination by the justice's court of the issues raised by the defendant's demurrer in the case before it was void because done upon and during a half-holiday, and that any later judgment which might be rendered would be necessarily predicated upon the previously void judicial action and would also be void.
Saturday afternoon has been made a nonjudicial period by the code. (Code Civ. Proc., secs. 10, 133, 134.) Section
The present action is one in equity to restrain the enforcement of the judgment rendered in the former action and claimed by defendant to be void. Usually in a case where the power of a court of equity is invoked to restrain the enforcement of a judgment in a court of law, the validity of the judgment and the apparent right of enforcement is conceded. (Metropolis Trust Sav. Bank v. Barnet,
Defendant's remedy was by a direct proceeding in the original action (Alderson v. Bell,
Judgment reversed.
Kerrigan, J., and Richards, J., concurred.