Brum v. Ivins

SLOSS, J.

This action was brought in the superior court of San Luis Obispo County to restrain the sheriff of said county and his deputies from levying a certain execution upon plaintiff’s real estate.

On October 10, 1904, one Blumenthal commenced an action in the justice’s court of the city and county of San Francisco against Manuel S. de Brum to recover sixty dollars with interest, alleged to be due on a promissory note made and delivered by Manuel S. de Brum to Dr. Meyers & Co., or order, and assigned to Blumenthal. The note, as set forth in the complaint, was by its terms, payable at San Francisco. Summons was issued and was regularly served on M. S. Brum, the plaintiff in this action. ITe made no appearance in the suit in the justice’s court, and judgment went in that court by default in favor of Blumenthal, and against the defendant named in the .complaint. Thereupon an execution was duly issued to the sheriff of San Luis Obispo County (defendant herein) and placed in his hands with instructions to levy on the real property of plaintiff in this action. The court found, following the allegations of the complaint, that plaintiff had never had any dealings with Dr. Meyers & Co., that he had never executed the promissory note sued on in the justice’s court, and that he had never been indebted to Dr. Meyers

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& Co. It further found that plaintiff’s full name is Manuel S. Brum, that he always signs “M. S. Brum,” and has never signed his name to any instrument as “Manuel S. de Brum.” The findings state that plaintiff did not appear in the action in the justice’s court because he “had signed no promissory note in said case or made any contract with Dr. Meyers & Co.” On these facts the court gave judgment restraining the defendants from levying execution against the plaintiff’s property. The defendants appeal.

The respondent necessarily rests his claim to relief upon the fact that the complaint, summons, and judgment in the justice’s court named the defendant there as Manuel S. de Brum, while the plaintiff here, whose property is sought to be taken in satisfaction of that judgment, is named Manuel S. Brum. If the action in the justice’s court had proceeded against Manuel S. Brum, it would hardly be contended that a person bearing that name could, after being duly served with summons and permitting judgment to go against him by default, maintain a proceeding to enjoin the execution of the judgment upon the mere ground that he was not in fact liable on the obligation which formed the basis of the former judgment. The justice’s court had jurisdiction of the subject-matter of the action (Code Civ. Proc., sec. 832), and by the service of summons on the defendant named would, in the ease supposed, have secured jurisdiction of his person. “A judgment in favor of the plaintiff necessarily establishes his right to the relief given