Rahm v. Minis
Before: Ehodes
Synopsis
Appeal from the District Court of the Sixth District, Yolo County.
This action was brought to obtain an order enjoining and restraining Wm. Minis, the Sheriff of Yolo County, in whose hands the execution was placed for service, and I. W. Jacobs from further proceeding upon an execution issued under a judgment rendered in favor of the plaintiff in the action of Jacobs v. Oaleb Davis, John Davis and M. A. Rahm.
Defendant demurred to the complaint on the grounds: 1st. Because it does not state facts sufficient to constitute a cause of action; and 2d, Because the facts stated show that plaintiff is not entitled to relief in chancery. The Court overruled the demurrer and rendered judgment, ordering and decreeing that the defendants, and each of them, be forever enjoined and restrained from further proceedings to collect the judgment from plaintiff, M. A. Rahm.
The other facts are stated in the opinion.
First — The bill does not state facts sufficient to constitute a cause of action, because:
1st. It is not alleged that the judgment was procured by fraud, or through any other cause for which equity will interfere.
2d. There is no Regularity in the entry of the judgment. The only thing alleged against, to wit: that it was entered in contempt of Court, is not proved.
3d. If the judgment is void, as alleged, then the seizure under the execution would be a trespass. No fact tending to show irreparable injury is alleged. The plaintiff had an adequate remedy at law. (Demitt v. Hays, 2 Cal. 463; Sup-ton v. Supton, 3 Id. 121; Logan v. Hillegass, 16 Id. 200; Tevis v. Filis, 25 Id. 516; Leach v. Day, 27 Id. 645; N. C. & 8. O. Go. v. Kidd, 87 Id. 307; Hagarv. Shindler, 29 Id. 47.)
Second — Defendant’s remedy is by appeal or motion in tbe Court below. (Imlayv. Oarpentier, 14 Cal. 174; Green v. Thomas, 17 Id.-86; Phelps v. Peabody, 7 Id. 50; Pico v. Sunol, 6 Id. 294.)
Third — Tbe judgment, tbougb upon an antecedent debt, being recovered after tbe discharge in insolvency, every presumption sustains it. Everything which in law might have supported the recovery will be presumed. (Hahn v. Kelly, 34 Cal. 391.) A new promise might have been presumed. (Smith v. Richmond, 19 Cal. 476; Feeney v. Daly, 8 Id. 84.) Fraud on the part of the insolvent in concealing property might have been proved. (Ellsassar v. Himter, 26 Cal. 279; Insolvent Act, Sec. 32; Hittell, Art. 3, 841.)
Fourth — The decree of discharge, when relied upon as a defense, must be pleaded; and in this case it might have been pleaded by plea puis darrien continuance. If it was not pleaded, the privilege was waived. If it was pleaded and proved, the remedy was by appeal.
Ehodes, C. J., delivered the opinion of the Court, Temple, J., Croqeett, J., and "Wallace, J., concurring:
The judgment which is the subject of controversy in this case was recovered by Jacobs, one of the defendants, about four months after the discharge of Eahm in insolvency, but the action was commenced before the proceedings in insolvency were instituted. The grounds of the attack are, that the judgment was procured in violation of the restraining order which was made at the commencement of the proceedings in insolvency, and without the knowledge or consent of Eahm; and that Eahm was discharged from all his debts and liabilities, including the debt to Jacobs before recovery of the judgment. The judgment was not, for either of those reasons, void, for the Court had jurisdiction both of the cause of action and of the parties — it not being alleged that Eahm was not duly served with process.
Eahm was .entitled to plead his discharge in insolvency in bar of the action, by supplemental answer. If that fact was pleaded, the judgment of the Court is conclusive that the plaintiff was entitled to his judgment, notwithstanding the alleged discharge in insolvency. If he omitted to plead the discharge in insolvency, the judgment is equally con-[426]elusive upon bim as it would be bad bis defense been accord and satisfaction, payment, etc., wbicb be bad neglected to plead. In sucb case be might bave moved for relief from tbe judgment, under tbe sixty-eighth section of tbe Practice Act, if be could sbow tbat tbe judgment was taken against bim through bis mistake, inadvertence, surprise or excusable neglect, and be might then bave set up bis defense to tbe action. Having a complete remedy at law, be was not entitled to relief in equity, by means of an injunction restraining tbe enforcement of tbe judgment.
Judginent reversed and cause remanded, with directions to sustain tbe demurrer to tbe complaint.
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