Hildebrand v. Martin

LANGDON, P. J.

This appeal is from a judgment on the pleadings, which judgment perpetually enjoined the defendants George J. Martin and Thomas F. Finn, as sheriff of the city and county of San Francisco, from selling, under an execution previously issued, certain real property located in the city and county of San Francisco and described in the complaint herein.

The facts appearing from the pleadings are the identical facts considered by our supreme court in the recent case of

Martin

v.

Hildebrand,

decided January 31, 1923, and reported in 190 Cal. 369 [212 Pac. 618], The conclusions reached in said case conclusively dispose of the appeal in the instant case. It was decided in the said case of

Martin

v.

Hildebrand, supra,

which involved the same parties, the

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same subject matter, and the same legal situation, that an order directing a sale of the said property under execution should have been made by the trial court and said court was directed to make such order. The present judgment granting a perpetual injunction against the defendants from proceeding with such sale is, therefore, erroneous.

The oral argument made by respondents upon the hearing of this case in this court, to the effect that the decision of the supreme court in the case of

Martin

v.

Hildebrand, supra,

is inapplicable here because the sale herein restrained is a sale under the

aUas

execution issued in January, 1921, and not a sale under the original execution issued in September, 1920, is without merit. ‘This is because the decision in