Erganian v. Brightman

ROTH, J.,

pro

tem.

to the year 1932, plaintiff and respondent herein was the owner of a lot in Long Beach, improved with a one-story building. He had borrowed $16,000 from a bank, giving his promissory note therefor and executing a mortgage on said property in favor of the bank to secure the note. Erganian was unable to meet the note when it fell due in 1932, whereupon the bank instituted foreclosure proceedings, and, pursuant to a judgment obtained therein, did on April 15, 1932, cause the sheriff to sell said property under the decree of foreclosure to satisfy the indebtedness. The property was purchased at the foreclosure sale by Mary C. Brightman, defendant and appellant herein. Before and after the sale, Erganian occupied one of the storerooms on the property in which he conducted a second-hand business. After the purchase of said property by appellant, Erganian remained in possession. Failing to collect rent from him, after repeated efforts to do so, appel

[698]

lant instituted an unlawful detainer action against Erganian, and upon his default in said action obtained judgment for the possession of the premises and $525 damages. Said judgment was entered on July 28, 1932. Execution was issued on said judgment within a few days thereafter, and a Ford automobile and certain other personal property belonging to Erganian were levied upon to satisfy the money feature of the judgment. On August 1, 1932, the sheriff placed appellant in the possession of the premises, theretofore occupied by Erganian, under a writ of assistance issued pursuant to the judgment in said unlawful detainer case. On May 22, 1933, a motion was made to vacate the judgment in the unlawful detainer case, Erganian contending that the judgment was void on its face, because the municipal court of the city of Long Beach had exclusive jurisdiction of the amount involved in the unlawful detainer suit, and that the superior court in which the unlawful detainer action was tried had no jurisdiction to try the same or enter a judgment therein. The default judgment was vacated pursuant to such motion. An appeal was taken by Mrs. Brightman from the order vacating said judgment, which appeal was dismissed on March 24, 1934.

Thereafter on April 18, 1934, Erganian instituted an action in the superior court, hereinafter referred to as “first” action. The complaint in this first action alleged that Erganian was the owner and in the possession of the premises described in the unlawful detainer action, and that the sheriff at the direction of Mrs. Brightman wrongfully trespassed and entered upon said premises and ejected Erganian therefrom and turned the possession of the same over to Mrs. Brightman; that, as a consequence thereof, Erganian had been unable to sell the property and preserve such equity as he may have had therein, and suffered mentally and physically, all to his damage. Further, that, by reason of the fact that Mrs. Brightman, pursuant to the writ of execution issued on the void judgment in the unlawful detainer action, had sold certain personal property located on the premises, he suffered further damage. Thereafter, on May 1, 1934, Mrs. Brightman filed a general demurrer to said complaint and each cause of action thereof, which demurrer was sustained. Erganian failed to amend within the time allowed, whereupon, on May 28, 1934, judg