Dore v. Dougherty

Temple, J. August 3,1880, George Dougherty, one of the defendants, recovered judgment against the present plaintiff for $2,186, and costs. On the same day Dougherty assigned the judgment to his son, John Dougherty. September 3d, Dore appealed to the Supreme Court from the judgment. The judgment was affirmed here February 16, 1883. (Dougherty v. Dore, 63 Cal. 170.) September 4, 1880, while the appeal was pending, defendant Miller caused a levy to be made on the judgment by virtue of an execution from the Justice's Court of San Francisco, upon a judgment against George Dougherty in favor of Miller. The attempted levy was by the sheriff, who delivered to and left with Maurice Dore a copy of the writ, with a notice in writing that such property, to wit, “ all the right, title, and interest in and to a certain judgment obtained in the Superior Court, department 5, of the city and county of San Francisco, in which George Dougherty is plaintiff, and Maurice Dore defendant, judgment having been rendered on the ninth day of August, 1880, against said Maurice Dore for the sum of $2,186, and costs”; also notifying Dore that he levied upon all moneys, goods, credits, effects, debts due or owing, or in his possession, or under his control; and requesting him not to pay or transfer the same to any one save said officer. September 27, 1880, the sheriff proceeded to sell all the right, title, and inter[234]est of George Dougherty in the judgment to the defendant Miller for the sum of twenty dollars, which was credited upon the execution and judgment in favor of Miller against said Dougherty. This action was brought by Dore under section 386, Code of Civil Procedure, to have the court determine who was entitled to receive the money, the amount of the judgment and costs, $2,850, being deposited in court. The court awarded the money to John Dougherty, the assignee of George Dougherty, and Miller appeals from the judgment, or a portion of it.

The Superior Court refused to allow Miller to introduce proof for the purpose of showing that the assignment to John Dougherty was fraudulent, on the ground that Miller had acquired no title to the judgment against Dore, and had no such standing as would enable him to attack the assignment. This position is sought to be maintained on the ground, first, the judgment rendered in Justice’s Court is void; but in this we do not agree with respondent’s counsel. The summons was sufficient, at least as against a collateral attack, under the rule laid down in Keybers v. McComber, 67 Cal. 395. Whether the alias summons was regularly issued or not is not a jurisdictional question.