Sanchez v. Carriaga

By the Court, Sawyer, J.: This is an appeal from an order refusing to dissolve an injunction. The motion was heard on complaint and answer. The judgment in the case of Carriaga v. Sanchez et al., copied into the transcript, is not a part of the answer, or of the papers upon which the injunction was granted, or upon which [172]the motion to dissolve was heard, and, consequently, is no part of the record in this case.

The suit was brought to restrain a sale under execution issued upon a judgment, on the ground that the execution is void upon its face, for reasons stated, and the further ground that the judgment upon which it was issued is also void—an absolute nullity upon its face—and to restrain the issuing of any other execution upon said void judgment. It is alleged that one of the defendants is insolvent and irresponsible, so that in case á sale should be made under the void judgment and execution, no adequate redress could be had against him in a suit to recover damages resulting from the trespass in selling under a void judgment and execution ; but nothing is said as to the responsibility of the other two defendants. The only equities relied on are the threatening to sell under a void judgment and execution, and to issue further executions upon the same void judgment, and the insolvency of one of the defendants. We think the complaint presents no case for an injunction. If the judgment upon which the execution is based and the execution itself are void upon their face, the County Court has ample power to afford speedy and adequate relief. If the judgment is void, the Court has entire control over the process and can arrest it. The County Judge also, upon a proper application, has authority to order a suspension of the execution of the writ till a motion before the Court to recall or quash it can be heard. The case of Logan v. Hillegass, 16 Cal. 201, is directly in point. The action was for an injunction and to annul a judgment claimed to be void because it appeared from the record that the Court had not acquired jurisdiction of the defendant. A demurrer for want of equity was sustained. Mr. Chief Justice Field, in deciding the case on appeal, said: “If, for any of these reasons, the judgment be absolutely void, as contended by counsel, the appellant has a perfect remedy, by application to the District Court, to quash the execution. The Court can at any time arrest all process issued by its Clerk on judgments which are void.” (Ib. 202; see also Chipman v. Bowman, 14 Cal. 158; [173]