60 Cal. 617 | Cal. | 1882
A money judgment having been originally entered in this case against the corporation defendant, it appealed to the Su
It is contended that the judgment rendered against the sureties is void, because the Court had no jurisdiction over their persons; because it was given without due process of law, and without reasonable notice; and because the section of the Code under which it was given is unconstitutional. It is conceded that the lower Court had jurisdiction of the subject-matter of the suit, and of the defendant against whom the original judgment was rendered, and from which that defendant appealed. Mow, that appeal was a continuation of the action; by it the original judgment entered in the action was suspended until the appellate Court had determined its validity; and when the sureties to the undertaking on appeal agreed that, in case of the affirmance of the judgment, or of any part of it, by the appellate Court, and of its non-payment by the judgment debtor, judgment might be entered also against them, in the Court from whose judgment the appeal was taken, according to the law under which the appeal was taken, they, in legal effect, voluntarily made themselves parties to the action, and submittedi themselves to the jurisdiction of the Court. The Court, therefore, had jurisdiction not only over the person of the original defendant to the action, but also, over the persons of the sureties to the undertaking on appeal in the case, until enforcement of any judgment recoverable against them as parties to the action.
And, having voluntarily made themselves parties to the action and submitted themselves to the jurisdiction of the Court, they also assented to and adopted all the provisions of the law for the enforcement of the obligation incurred by their undertaking, and waived any constitutional or statutory
Nothing is to be found in the Constitution which prohibits any one from making himself a party to an action pending in a Court, or from voluntarily submitting himself to the jurisdiction of the Court, and stipulating that judgment may he entered against him in. the action. “A Constitution would become a very officious instrument if it sought to force its protection upon any man against his will.” (Chappee v. Thomas, 5 Mich. 60.) The section of the Code under which the judgment was entered against the sureties on their appeal bond, does not, therefore, conflict with the Constitution. (Ladd v. Parnell, 57 Cal. 232.) “A party,” says Mr. Justice Bradley, in Beall v. New Mexico (16 Wall. 540), “who enters his name as surety on an appeal bond, does it with a full knowledge of the responsibilities incurred. In view of the law relating to the subject, it is equivalent to a consent that judgment shall be entered up against him if the appellant fails to sustain his appeal. If judgment may thus be entered on a recognizance, and against stipulators in admiralty, we see no reason in the nature of things, or in the provisions of the Constitution, why this effect should not be given to appeal bonds in other actions, if the Legislature deems it expedient. No fundamental constitutional principle is involved; no fact is to be ascertained for the purpose of rendering the sureties liable, which is not apparent in the record itself.”
But it is urged that although jurisdiction over the persons of the sureties had been acquired, the Court, in the exercise of that jurisdiction, could not legally render judgment against them, on their undertaking, without notice; because having a right to show payment of the original judgment, they were entitled to notice of any motion for judgment against them
But every presumption is in favor of the legality of the judgment of a Court of competent jurisdiction. Being rendered by a Court of competent jurisdiction, the judgment appealed from is presumably correct. For the purpose of rendering the judgment, no fact was to be ascertained which was not apparent on the record itself. On that record the plaintiff in the action was, as matter of right, entitled, under the law, to have judgment against the sureties upon his motion; and of this motion the law under which it was made required no notice (Sec. 958, C. C. P.); nor was notice necessary; for the sureties had stipulated that judgment might be entered against them upon the contingency which had come to pass, as was apparent from the record of the case in which their stipulation was filed, and a judgment to be entered against parties to an action, pursuant to their stipulation on file, which does not provide for notice, may be entered without notice.
There is not in this mode of procedure anything which prejudices the rights of the parties to the action; for if, in fact, the original judgment was paid, although not satisfied of record, the parties have their remedy under Section 675 of the Code of Civil Procedure to have satisfaction entered, and, for that purpose, to recall any execution which may have been issued against them, or they may have the judgment vacated (McMillan v. Baher, 20 Kan. 50); or annulled (Noyes v. Loeb, 24 La. Ann. 48.)
Moreover, while, as has been shown, the law does not require notice for the rendition of a judgment against sureties on an appeal bond, upon the expiration of the statutory time after affirmance of the judgment appealed, yet there was given, in fact, a notice in this case. It is said to have been unseasonable and therefore no notice at all; but of that there is nothing in the record; for there is no bill of exceptions, and the judgment on its face shows that “the order to show cause was duly served by delivering copies thereof to the sureties on the undertaking before the return day of the order;” and that “all parties appeared by their respective attorneys.”
Myrick, McKinstry, Sharpstein, and Thornton, JJ., concurred.