71 P. 1123 | Cal. | 1903
In the case of Citizens' Bank versus the present plaintiff and her husband, B.F. Rucker, (San Francisco, No. 2159,) the judgment of the lower court has just been here affirmed. By that judgment the right of the Citizens' Bank to have certain premises sold to satisfy its lien was directly adjudicated. Thereafter the plaintiff in the present *613 case — defendant in the former case — brought this action to enjoin the defendant herein, who is sheriff, from selling the identical premises under an execution issued upon the said former judgment; and judgment herein was rendered perpetually enjoining the sheriff from so doing. From this judgment defendant appeals.
The only fact alleged in the present action not appearing in the former suit is, that at the time of the commencement of the former suit, and ever since, the premises in question constituted plaintiff's homestead. But in the former suit the plaintiff herein had the opportunity of setting up all defenses which she then had to that action, and the judgment therein was conclusive against her as to those defenses. The execution on the former judgment cannot be enjoined upon any of the grounds here relied on, and certainly not to the prejudice of the plaintiff in the former suit who is not made a party to the present action.
The judgment is reversed.
Hearing in Bank denied.
