Gates v. Lane

By the Court, Rhodes, J.: The complaint alleges that the plaintiff and two others executed a joint promissory note to defendant MqEIhany; that McElhany recovered a judgment on the note against all the makers before a Justice of the Peace of Solano County; that a transcript of the judgment was filed with the County Clerk of that county, who issued an execution to the Sheriff of Stanislaus County; that the Sheriff levied on the “ undivided personal property of this plaintiff of the value of three thousand dollars,” and is about to sell the same under the execution; that no summons was served on the plaintiff; [396]that he did not appear in the action before the Justice of the Peace; and that the Justice rendered judgment without having acquired jurisdiction of the person of the plaintiff.

The complaint does not show whether the return upon the summons states that the plaintiff was served, nor, indeed, whether a summons was issued; nor whether the judgment or other entries in the Justice’s docket state that the plaintiff was served with process or whether he appeared in the action. In other words, the complaint does not show whether the judgment is void on its face, or whether it is apparently valid, but is void because the Justice did not in fact acquire jurisdiction of the plaintiff. The prayer is for an injunction restraining the enforcement of the execution and the judgment. The answer denies, though not in a very formal manner, the allegations of the complaint in respect to the failure of the Justice to acquire jurisdiction of the plaintiff. The plaintiff had judgment in accordance with the prayer of the complaint.

It is quite obvious that when one of the defendants in a joint judgment sues to have the judgment perpetually enjoined, his codefendants should be made parties to the action, or sufficient reasons for their omission should be stated. And it is equally clear that in such a case, if all the judgment defendants are not made parties, the Court ought to exercise the authority conferred by the seventeenth • section of the Practice Act, and require the omitted parties to be brought in.

If the judgment of the Justice is void on its face, then the question would arise whether, under the authority of Murdock v. De Vries, 37 Cal. 527, an action for an injunction will lie—whether the plaintiff" has not an ample remedy by motion, to quash the execution. And the further question would arise as to what Court, if any, would have jurisdiction to quash an execution issued by the County Clerk, upon the transcript of a judgment of a Justice of the Peace.