112 Cal. 637 | Cal. | 1896
Appeal from the judgment upon the judgment-roll, the sole question being whether the findings support the judgment.
The action is based upon a judgment obtained by one Latham against these defendants in another suit foreclosing a lien upon certain lands, and. directing a sale thereof in satisfaction of the lien—the object of the present action by the plaintiff, claiming as assignee of Latham, being to enforce said judgment by procuring a sale of the property therein directed to be sold. It was held on a former appeal herein that the action would lie, and that the complaint stated a cause of action. (Rowe v. Blake, 99 Cal. 167; 37 Am. St. Rep. 45.)
The complaint alleges that the judgment sued upon was recovered in 1879, and that the assignment by Latham to plaintiff was made in 1884. These allegations are not denied, but the defense relied upon by the defed ants was that the judgment had, before such assignment and the bringing of the present action, been put in execution and satisfied by a sale of the property.
Upon this issue the court found these facts: “ In the
The ground upon which it is urged that these findings fail to warrant the judgment in favor of defendants is, in brief, that it affirmatively appears therefrom that the process under which it was attempted to sell the property in satisfaction of the decree in suit was issued at the instance of one not authorized to control it; that the ownership of Latham and the assignment to plaintiff not being denied, the latter alone must be held to have had the right and authority under the law to control the judgment, and the only one on whose application process could competently issue; that, consequently, the order of sale issued and executed at the instance of Osborn, a mere stranger to the judgment, was wholly void, and the proceedings had thereunder without legal effect.
It is undoubtedly true, as an abstract proposition, that the owner of a judgment is the one on whose demand process may regularly and properly issue thereon; but is it true, as urged by appellant, that the findings show that the process was not so issued in this instance? There can no be question that the court wherein a judgment is entered has control of such judgment and authority to direct the issuance and execution of process thereunder in the interest of the party entitled thereto; and necessarily, as incidental to such power, that of determining in any instance who is entitled to process. (Code Civ. Proc., secs. 128, 385; McAuliffe v. Coughlin, 105 Cal. 268.) Here it appears that the court, in the
This being true, the process issued in pursuance of such order was not void, even if erroneous, and the proceedings taken thereunder in execution of the judgment are protected by the same presumptions of regularity as attach to the judgment itself. “A collateral attack can no more be made upon an erroneous execution than upon an erroneous judgment. Like erroneous judg
Independently of these considerations, we think the general finding that the judgment sued on “has been wholly put in execution and satisfied,” is sufficient of itself to sustain the judgment, whether such finding be regarded as a conclusion from the special or probative facts found, or as an independent finding. If the former, it is not inconsistent therewith, and if the latter, the appeal being upon the judgment-roll without the evi-. deuce before us, it is conclusive. And, in such case, even if the probative facts did not, in our judgment, sustain the general finding, the latter would control, since to hold otherwise would be to determine that the evidence did not justify the decision, and that cannot be done in this mode. (Perry v. Quackenbush, 105 Cal. 305, and cases therein cited.)
The judgment is affirmed.
Garoutte, J., and Harrison, J., concurred.
Hearing in Bank denied.