Holmes v. Justice's Court

NOURSE, P. J.

Petitioner sued for a writ to review an order of the Justice’s Court granting a perpetual stay of execution upon a judgment which petitioner had secured against Mrs. Leese. Petitioner also asked a writ of mandate to require the Justice’s Court to issue a writ of execution upon that judgment. The respondents appeared by demurrer and answer. After a hearing, judgment was entered for petitioner upon both counts. Thereafter the respondents moved for a new trial, which was granted, and judgment was then entered for respondents denying any relief to petitioner.

The appeal is taken from this judgment. No question is made that the writ of mandate should not issue if the order

[364]

of the Justice’s Court is annulled, and we will, therefore, confine our discussion to the writ of review.

That the Justice’s Court had no jurisdiction to enter the order perpetually staying execution must be obvious. The effect of such order was to cancel or annul the judgment on the debt. When plaintiff’s judgment was entered on June 13, 1934, and the defendant therein allowed it to become a final and valid judgment, “the validity and finality thereof was not affected by the fact that it was based upon a debt discharged in bankruptcy. A discharge in bankruptcy is a special defense, and it must be pleaded.

(Tuttle

v.

Scott,

119 Cal. 586 [51 Pac. 849] ;

In re Boardway,

248 Fed. 364;

Garner

v.

Hartsfield Loan and Savings Co.,

49 Ga. App. 199 [174 S. B. 647]; 4 Cal. Jur. 86.) ”

(Harrell

v.

Hoagland,

18 Cal. App. (2d) 721 [64 Pac. (2d) 953].)