Maple v. Walser

JENNINGS, J.

This action was instituted by plaintiffs in the Superior Court of Kern County to enjoin the enforcement of a certain judgment alleged to have been rendered in favor of the defendant, Peoples Finance & Thrift Company of Porterville, a corporation, in the Justice’s Court of Porterville Township, Tulare County, in an action wherein said Peoples Finance & Thrift Company was plaintiff and the plaintiffs herein were defendants, and to have the judgment so rendered in said justice’s court declared void. Upon the filing of the complaint in the present action the superior court made an order requiring the defendant Walser, as Sheriff of Kern County, to show cause why he should not be restrained, during the pendency of the action, from paying to the Peoples Finance & Thrift Company of Porterville the sum of $288.76, or any other sum of money, and pending the hearing on the order to show cause that said defendant sheriff be restrained and enjoined from turning over to said corporation the said sum of $288.76 or any other sum of money collected from the plaintiffs. To the complaint thus filed the defendants interposed a general and special demurrer. The order to show cause and the demurrer to the complaint came on for hearing at the same time. Upon the conclusion of the hearing the court ordered that the demurrer be overruled and that a temporary re

[633]

straining order be granted

pendente lite.

From the order thus made the defendants have prosecuted this appeal.

The record herein shows that, upon the hearing of the order to show cause why a temporary injunction

pendente lite

should not issue, the defendants, in opposition to the granting of the injunction, presented to the court an affidavit of the Justice of the Peace of Porterville Township, Tulare County. It appears that other than this affidavit the only evidence which was submitted consisted of the allegations of the verified complaint of plaintiffs.

The aforementioned affidavit contains a copy of the docket of the Justice’s Court of Porterville Township in the case in which Peoples Finance & Thrift Company of Porterville was plaintiff and F. E. Maple, C. E. Dewey, Charles Foster and Roy R. Foster were defendants. It appears therefrom that on May 6, 1930, complaint in the action was filed and summons issued and that on June 2, 1930, notice of motion to quash service of summons was filed. It further appears that on June 14, 1930, counsel for the defendants appeared before the court and presented an argument in support of the motion to quash service of summons and that on September 10, 1930, the motion to quash service of summons on F. E. Maple and C. A. Dewey was denied. On September 29, 1930, the aforesaid defendants F. E. Maple and C. A. Dewey filed a written answer in the action. On October 23, 1930, the case came on for trial and the entry in the docket for this date shows that counsel for the respective parties to the action were present and announced that they were ready to proceed with the trial. It also appears that certain named witnesses testified on behalf of the plaintiff and other named witnesses testified on behalf of the defendants and that certain documentary evidence was received. It further appears that upon the conclusion of the trial the court took the case under advisement and on October 27, 1930, rendered judgment in plaintiff’s favor for $257.70. On January 3, 1931, a notice of appeal was filed. The complaint in the present action alleges that the plaintiffs herein, who were defendants in the action in the justice’s court, presented to the Justice of the Peace a motion to quash service of summons on the ground that they were residents of Kern County and that the allegation contained in the complaint