Gregory v. Ford

California Supreme Court Jul 1, 1859Published

Before: Baldwin

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Holding. A court of equity will not enjoin a judgment by default based on a false return of service of process when the defendant admits the underlying debt is just and lacks a meritorious defense to the original action.

Issues

Can a defendant with no defense to an action enjoin a judgment by default on the ground that the Sheriff's return of service was false?
Does a court of equity have jurisdiction to correct irregularities in the issuance of an execution by a court of law?

Disposition. reversed

Quotations verified verbatim against the opinion

“Can a defendant having no defense to an action, enjoin a judgment by default obtained on a return by the Sheriff of service of process, upon the ground that the return is false; that in fact he had no notice of the proceeding?”

“Courts of Equity do not interfere with the judgments and proceedings of the Courts of Law, except in peculiar cases. They do not interpose to correct the errors or irregularities of the Law Courts.”

“The case made by the bill is as we put it in the opinion—the case, namely, of a defendant in a judgment, impliedly confessing the justice of the claim of the creditor, and seeking in equity to set aside the judgment”

Synopsis

A defendant, having no defense to an action, cannot go into equity and enjoin a judgment by default, on the ground that the Sheriff’s return of service on him is false, and that in fact he had no notice of the proceeding.

Equity interferes with judgments and proceedings at law, only in peculiar cases, not to correct errors and irregularities. It seldom or never interferes to enforce a mere technical right. There must he substantial merit.

Where the error of a decree is apparent by reference to the bill and decree, the party aggrieved may assign the error, though no demurrer he interposed.

The improper issuance of a second execution is no ground for equitable interference. Such irregularities must be corrected by the Court issuing the writ.

Where the judgment of the Court recites that summons was served on defendant, the fact that, years afterward, there appears some erasure or interlineation on the Sheriff’s return is not sufficient to nullify the return, in the absence of a ■direct attack upon it for fraud, or forgery, or alteration.

Opinion — Baldwin

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.

This is a bill filed by the plaintiff to vacate a judgment rendered against him and others in 1853, in favor of Jesse O. Goodwin. The bill alleges that after the rendition of the judgment execution issued on it, and was levied on some property of the other defendants thereto, which property was sold by the Sheriff, and as plaintiff believes, for enough to pay the execution. The [141]bill further charges, that the plaintiff had not, until the 17th day of December, 1857, any knowledge of the existence of this judgment against him; that he was never served with any summons and certified copy of complaint therein, nor with either, and never had any knowledge of any such action. It is then alleged, that the execution first issued never was returned nor its loss shown, nor any reason given for the failure. The bill prays for an injunction. The parties defendant are Thornburgh, the Sheriff, and Ford, who is charged to be the assignee of Goodwin. Ford answered, denying the allegations of the complaint. The Court found that the plaintiff had no notice. The summons was returned executed on him. The evidence shows that upon the writ appeared the name of plaintiff as one of defendants, served by the Sheriff, but that this name seemed to be written in place of another name or word scratched out; and the evidence tended to show that at the date of the service, as returned, defendant was out of the county. But no fraud is charged in the return, nor is it charged that the Sheriff did not return the summons executed as it appears, nor that any alteration has been been made in the'return. Mor is it charged that the defendant had any defense to the note, which was the foundation of the action; but on the contrary, there is evidence that the defendant owed the debt, and that it is still due.

The case then on the pleadings and proofs resolves itself into this proposition of law : Can a defendant having no defense to an action, enjoin a judgment by default obtained on a return by the Sheriff of service of process, upon the ground that the return is false; that in fact he had no notice of the proceeding? It is difficult to see upon what principle chancery would interfere in any such case in favor of such a defendant. In analogy to its usual course of procedure, it would seem that the plaintiff, having acquired without any fraud on his part, a legal advantage, would be permitted to retain it as a means of securing a just debt; and that a Court of Equity would not take it away in favor of a party who comes into equity acknowledging that he owes the money, and claims only the barren right of being permitted to defend against a claim to which he had no defense. It would certainly seem that it would be quite as equitable to turn the defendant in execution over to his remedy against the Sheriff

Gregory v. Ford

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Synopsis

Opinion — Baldwin

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