114 Cal. 522 | Cal. | 1896
This is an action brought to recover damages for the conversion of certain horses. Defendant recovered judgment and plaintiff appeals. Among other reasons given by the respondent why the judgment should not be reversed is the claim that the complaint states no cause of action. As I think the claim must be sustained, it will not be necessary to mention other points.
The complaint is not in the usual form for conversion, but proceeds with the narration of certain alleged facts.
The complaint contains no other averment of any conversion, and manifestly the conversion averred is simply the sale by the constable under execution duly issued upon the judgment recited, and plaintiff claims that it was a conversion on the ground that the judgment against him was void. a
It is also obvious that the ground upon which appellant claims that the judgment rendered against him by the justice was void is, that the motion for a change of venue ousted the justice of jurisdiction. No authority for any such proposition is cited, and I presume
Another point is, that the case was appealed by the plaintiff from the justice court to the superior court, where the appeal was dismissed for some technical defect in the appeal. I.t is claimed that this dismissal was an affirmance. Had the judgment appealed from been entirely void I do not suppose such a dismissal would have made it a valid judgment, but, as it was merely erroneous, such dismissal did have the effect of putting it beyond attack for any error which could have been availed of by the appellant on that appeal.
For these reasons the judgment is affirmed.
McFarland, J., and Henshaw, J., concurred.
Hearing in Bank denied.