Harbaugh v. Lassen Irrigation Co.

BURNETT, J.

The appeal is from an order granting defendant’s motion to recall and quash an execution. The judgment in the cause was rendered October 16, 1907. An attempt was made to have this judgment reviewed by the appellate court, but the appeal was dismissed on August 12. 1914. On May 20, 1915, the superior court of Lassen County, Honorable J. 0. Moncur, Judge presiding, made an order directing execution to issue on said judgment and the clerk of said superior court issued an execution under the seal of said court on the twenty-seventh day of November following. A copy of this writ is set out in the transcript. It recites that “$586.95, with interest, is now (at the date of this writ) actually due on said judgment,” and contains the usual direction to the sheriff to satisfy said judgment. Then follows in the transcript a copy of the “order granting motion to settle and quash execution.” It recites:

“The defendant’s motion, issued in the above entitled court and cause, to recall and quash execution, coming on regularly to be heard on Monday, April 3rd, 1916, at two o’clock p. m., Pardee & Pardee for the motion, and no one' appearing for plaintiff, the evidence on said motion being presented . . . the said motion was then submitted, and the same being by the court duly considered, it is ordered that the motion be and the same is hereby granted, and the said execution be and the same is hereby recalled and quashed.

“Clarence A. Raker,

“Judge of the Superior Court of the State of California, in and for the County of Modoc, presiding in the above entitled court and cause on the hearing of said motion.”

It is apparent that the transcript is quite incomplete, as it does not contain a copy of the notice of said motion or of the papers used on the hearing in the court below as required

[766]

by section 951 of the Code of Civil Procedure. Nor is there any bill of exceptions or other document setting forth in any way the evidence upon which the court below acted. We may, therefore, accept as true the statement of other facts by respondent. Indeed, appellant does not question the accuracy of said statement. It seems that the only language in said judgment which purported to be an adjudication of the matters at issue was as follows: “Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged and decreed, that the plaintiff do have and recover from defendant plaintiff’s costs and disbursements incurred in this action, amounting to the sum of Eighty-six and 95/100 Dollars.” As we have seen, the execution, issued November 27, 1915, recites that the judgment was for the sum of