Harnish v. Bramer

The Court. This is an action for a decree enjoining the defendants from enforcing against the plaintiffs a judgment obtained in a Justice’s Court in and for Alisal township, county of Monterey, in favor of defendant J. J. Conner, and against said plaintiffs.

A demurrer was interposed to the complaint herein, on the ground that the same did not state facts sufficient to constitute a cause of action against the defendants.

2. That said complaint does not state íacts sufficient to constitute a cause of action against the defendants M. L. Dexter and George W. Roadhouse, etc.

3. That there is a misjoinder of parties in this, that said M. L. Dexter and George W. Roadhouse are not proper or necessary parties.

The demurrer was sustained, and plaintiffs declining to amend, final judgment was entered in favor of defend[157]ants, from which judgment this appeal is prosecuted by said plaintiffs.

Objection is made by respondents that the judgment was not entered in the cause until after this appeal was taken, and a certificate of the clerk of the Superior Court in support of the position is filed, showing that judgment was entered “ on October 5, 1885, or within a few days after said date,” etc.

The record before us shows on its face that judgment was entered September 7, 1885, and counsel for respondents, having stipulated that the transcript is correct, cannot be heard to impeach it by showing the entry of judgment at another and later date.

The complaint to which the demurrer is interposed shows, in substance, that the plaintiffs are both residents of Yolo County, state of California, and were such residents on the 24th of June, 1884; that defendant Beamcr is sheriff of Yolo County; that defendant Dexter is county clerk of Monterey County; and that defendant Roadhouse is a justice of the peace of Alisal township, county of Monterey; that on the twenty-fourth day of June, 1884, defendant Conner commenced an action against the plaintiffs herein, in the court of defendant Roadhouse in said Alisal township, and caused a summons to issue therefrom, which was served on F. B. Harnish in Yolo County on the first day of July, 1884; that no other service was ever had upon the plaintiffs herein, or either of them; that defendant Roadhouse falsely made an entry in his docket showing that both of the plaintiffs herein were served with summons on the first day of July, 1884, at said Alisal township, and that a like false entry was made by said justice, showing that the defendants therein and plaintiffs here appeared and demurred to the complaint on the fifth day of July, 1884, all of which the justice knew to be false, and that no appearance whatever was made by the plaintiffs or by any one of them in said action; that the justice never ac