Kupfer v. Brawner

SHENK, J. —

The plaintiff appealed from a judgment for the defendants in an action to set aside a prior judgment rendered against the plaintiff in joint debtor proceedings taken pursuant to sections 989

et seq.

of the Code of Civil Procedure.

The facts in this controversy are undisputed and present the question whether the trial court correctly concluded that

[563]

the judgment entered against the plaintiff in said joint debtor proceedings was valid and enforceable.

In April, 1934, Oil Tool Exchange, Inc., obtained a judgment against Katie M. Eustace in the sum of $6,284 for rental of certain oil drilling equipment. In the action in which that judgment was rendered A: M. Kupfer, the plaintiff herein and co-partner of Eustace, was also named as a defendant, but he was not served with summons. The action proceeded to judgment against Eustace alone. That judgment was assigned to Fourl, who assigned to Brawner. Subsequently joint debtor proceedings were commenced against Kupfer in which he appeared and interposed various defenses. Judgment was rendered against him on March 9, 1937, in the sum of $3,225. Kupfer did not appeal from that judgment and it became final. The present action to have said judgment set aside was commenced in January, 1939.

Section 989 of the Code of Civil Procedure provides: “When a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, by proceeding as provided in section 414 of this code, those who were not originally served with the summons, and did not appear in the action, may be summoned to appear before the court in which such judgment is entered to show cause why they should not be bound by the judgment, in the same manner as though they had been originally served with summons.” After provision for the issuance and service of summons, it is provided in sections 992 and 993 of the Code of Civil Procedure that the defendant may answer and deny the judgment or set up any defense arising subsequently, or deny his liability on the obligation by reason of any defense existing at the commencement of the action in which the judgment was rendered. Section 994 provides that the issues may be tried as in other cases, but that if the defendant denies his liability on the obligation, any verdict against him must not exceed the amount remaining unsatisfied in the original judgment with interest.