Newman v. Barnet

LORIGAN, J.

Plaintiffs brought this action in the superior court of Alameda County to enjoin the defendant Barnet, as sheriff of said county, from selling their property levied on by him under an execution issued by the clerk of the superior court of San Joaquin County, upon a judgment recovered against plaintiffs in a justice’s court of said San Joaquin County.

Judgment was entered in said superior court in favor of plaintiffs, enjoining the sale as prayed for. This appeal is from said judgment alone, and the only question presented is, do the findings sustain the judgment.

It appears from the findings that one C. A. Wright brought an action in the justice’s court of 0 ’Neal township in San Joaquin County against defendants for the value of goods, wares, and merchandise alleged to have been sold and delivered to defendants; that none of the defendants (plaintiffs in the present suit) ever resided in O’Neal township or in San Joaquin County, but at all times were residents of the city of Oakland in Alameda County; that the complaint in said action in the justice’s court contained no allegation as to the residence of defendants therein, nor that the said defendants had contracted in writing respecting the purchase of said goods; in fact, aside from the absence of any allegation in the complaint

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on this latter subject, -the court found as a fact that the alleged agreement by defendants respecting the purchase of said goods, wares, and merchandise, was not in writing, but entirely oral; the service of summons was made on the defendants in Alameda County; a default judgment was entered against them in said justice’s court on March 2, 1910, and on April 6, 1910, the execution, the enforcement of which was sought in this action to be enjoined, was levied on the property of defendants. It was further found that on April 22, 1910, defendants appeared specially in said justice’s court and-moved to set aside the service of summons and said default judgment, which motion was denied.

It is provided by section 848 of the Code of Civil Procedure relative to the service of summons in justice’s courts that a summons cannot be served outside of the county wherein the action is brought

except—“2.