Brown v. Jernigan

California Court of Appeal Oct 8, 1925 No. Docket No. 5169.Published

Before: Conrey

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Holding. A writ of mandate will not be issued to compel a sheriff to proceed with an execution sale when the sheriff is restrained by an injunction issued by a court of competent jurisdiction, as the writ cannot be used to review the propriety of that injunction.

Issues

Whether a sheriff may be compelled by mandate to execute a judgment despite an existing injunction issued by another superior court.
Whether a superior court's injunction against an execution sale can be collaterally attacked in a mandate proceeding.

Disposition. peremptory writ denied

Quotations verified verbatim against the opinion

“It is no part of a sheriff’s duty to sit in judgment upon judicial acts, and reform the errors or revise the orders of the judge.”

“we think that the writ of mandamus should not be used as a writ of error to interfere with an order of injunction made by a court where the court was acting within its jurisdiction, even though such action may be erroneous.”

CONREY, P. J.

On application of petitioner this court issued a writ of mandate, requiring the respondent, as Sheriff of Orange County, to advertise and sell property on which levy has been made under an execution, or show cause why he should not so proceed. Respondent by his answer seeks to justify his refusal by showing that he has been enjoined.and restrained by an injunction issued out of the superior court of Orange County.

In March, 1915, in the superior court of Los Angeles County, a money judgment was entered in favor of W. H. Brown, plaintiff, against Walter C. Rowell and Ethel Rowell, defendants. The execution was issued on the first day of July, 192'5, pursuant to an order of the superior court of Los Angeles County. Prior to the injunction the sheriff levied upon personal property and also upon real property as property of the defendants.

After the levy made under the execution the defendants Rowell commenced an action in the superior court of Orange County by verified complaint, wherein they alleged facts whereby they sought to show that it was inequitable to permit the enforcement of said judgment against them. On presentation of that verified complaint and an undertaking approved by the court, the superior court of Orange County granted a temporary restraining order and. an order on Brown and his attorney and the Sheriff of Orange County, defendants, requiring them to appear and show cause why an injunction should not be granted. At the hearing of that matter, on August 7, 1925, the court granted the temporary injunction, and at the same time allowed plaintiff five days to amend the com

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plaint. That amendment was filed on August 12, 1925. Said complaint, with the amendment thereto, and certain affidavits and other documents which were before the superior court of Orange County at the hearing on August 7th, are to be found in respondent’s return herein and in the supplemental petition of petitioner Brown filed herein on August 10, 1925. At the hearing of this proceeding before this court on August 24, 1925, it was stipulated that said supplemental petition may be considered the same as if it had been filed prior to the issuance of the alternative writ of mandate.

The facts, as above stated, raise a question concerning the extent and the limits of power of a superior court to interfere with the execution of the judgment of another superior court. A like problem was presented in

Brown v. Jernigan

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CONREY, P. J.

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