Engelken v. Justice Court

BRITTAIN, J.

The plaintiff appeals from a judgment of the superior court in Alameda County refusing to prohibit the respondents from proceeding with an action originally commenced in the justice court.

In the justice court suit Engelken, the appellant, sued Manuel Faira in claim and delivery on an assigned claim from one Sanderlock for a nine year old Indian pony. The value of the pony was alleged to be $100. Manuel Faria, not Faira, was served with summons and complaint. The record shows that Sanderlock testified that he worked for Faria and for his work was to receive the pony. Thereupon default judgment was entered, not against Faira, but against Faria, for the pony, or in lieu thereof $100 and costs taxed at seven dollars, on September 26, 1919. Notice of the judgment was immediately mailed by the justice of the peace to Manuel Faira and was thereafter returned by the postoffice undelivered. Execution on the judgment was issued October 2d. On November 7th the constable demanded payment of the judgment on the execution then in his hands for levy and Faria paid the $107, saying at the time to Engelken, who accompanied the constable with his attorney, “This is a hell of a game you are pulling off on me.” On the following day Mrs. Manuel Faria called on the justice and was informed in regard to the judgment, and within ten days thereafter Faria filed affidavits with the justice setting forth, among other things, that he was unable to read the English language; that when he was served with the summons and complaint by the constable

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he explained his side of the controversy to the plaintiff he was assured by the plaintiff that he was satisfied Sanderlock had no claim against him, and that he, Faria, understood from the conversation that nothing further would be done in the suit; that he had heard nothing further in regard to the matter until the constable demanded payment of the judgment under execution, and that he had a valid defense to the plaintiff’s claim. Counter-affidavits were filéd by the plaintiff denying the statements contained in the affidavits of Faria. The prohibition proceeding was commenced in the superior court to prevent the justice of the peace from setting aside the default judgment.

Only two questions presented require determination. They are, first, whether or not the payment made by Faria was voluntary and in complete satisfaction of the judgment, and, secondly, if it was not, whether the justice court had power to vacate the default judgment under the provisions of section 859 of the Code of Civil Procedure.