Rahm v. Minis, No. 2,554

No. 2,554 | Cal. | Oct 15, 1870

Ehodes, C. J.,

delivered the opinion of the Court, Temple, J., Croqeett, J., and "Wallace, J., concurring:

The judgment which is the subject of controversy in this case was recovered by Jacobs, one of the defendants, about four months after the discharge of Eahm in insolvency, but the action was commenced before the proceedings in insolvency were instituted. The grounds of the attack are, that the judgment was procured in violation of the restraining order which was made at the commencement of the proceedings in insolvency, and without the knowledge or consent of Eahm; and that Eahm was discharged from all his debts and liabilities, including the debt to Jacobs before recovery of the judgment. The judgment was not, for either of those reasons, void, for the Court had jurisdiction both of the cause of action and of the parties — it not being alleged that Eahm was not duly served with process.

Eahm was .entitled to plead his discharge in insolvency in bar of the action, by supplemental answer. If that fact was pleaded, the judgment of the Court is conclusive that the plaintiff was entitled to his judgment, notwithstanding the alleged discharge in insolvency. If he omitted to plead the discharge in insolvency, the judgment is equally con-elusive upon bim as it would be bad bis defense been accord and satisfaction, payment, etc., wbicb be bad neglected to plead. In sucb case be might bave moved for relief from tbe judgment, under tbe sixty-eighth section of tbe Practice Act, if be could sbow tbat tbe judgment was taken against bim through bis mistake, inadvertence, surprise or excusable neglect, and be might then bave set up bis defense to tbe action. Having a complete remedy at law, be was not entitled to relief in equity, by means of an injunction restraining tbe enforcement of tbe judgment.

Judginent reversed and cause remanded, with directions to sustain tbe demurrer to tbe complaint.