Thuesen v. Superior Court

THE COURT.

This is a petition for a writ of mandate to compel the respondent court to order and the respondent clerk to issue an execution for the arrest and imprisonment of one Charles H. Zentini.

On May 22, 1931, the petitioner filed an action against said Charles H. Zentini to recover damages sustained by the alleged fraud and conversion on the part of the defendant in a certain stock transaction. Judgment by default in that action was entered for the plaintiff. The judgment recited the trial court’s findings of fraud on the part of the defendant in securing from the plaintiff certain securities and in converting them to his own use, and ordered that the plaintiff, on the return of execution against the goods and property of the defendant unsatisfied in whole or in part, was entitled to an execution for the arrest and commitment of the defendant, etc. Executions against the property of the defendant were returned wholly unsatisfied. The plaintiff thereupon invoked the remedy of execution against the person of the defendant as provided by the Code of Civil Procedure. (Code Civ. Proc., secs. 682, 684, 478-504; sec. 15, art. I, Const, of Calif.; 3 Cal. Jur. 152, 153.) Thereafter an execution was issued against the person of said Charles H. Zentini, pursuant to which he was arrested and taken into custody. On the day follow'ing his arrest Zentini pro

[574]

cured a writ of

habeas corpus

returnable before the Superior Court of the City and County of San Francisco. The sheriff made his return to the writ admitting the matters hereinbefore' stated and contended as a defense to the application for the writ that the court had no jurisdiction to discharge the prisoner under sections 1143 to 1154 of the Code of Civil Procedure, which provides the manner in which a discharge of a prisoner arrested pursuant to such an execution may be obtained. A motion to dismiss the

habeas corpus

proceedings on that ground, and to remand the prisoner, was made and denied. On August 18, 1931, the superior court ordered the discharge of Zentini on the ground that the judgment in the tort action, in so far as it decreed the plaintiff entitled to body execution against Zentini, was invalid in that the relief thus granted was not justified by the complaint. Thereafter, on September 10, 1931, the plaintiff again applied to the respondent court for an order directing the issuance of execution against the person of Zentini, but the application was denied by said court on the ground that the defendant could not be re-arrested after his discharge on the writ of