Luco v. Brown

Belcher, C. C. This action was commenced in the Superior Court of San Diego County, to obtain an injunction restraining the defendants “ from levying upon or attaching plaintiff’s, property, or any part thereof,” under an execution issued upon a judgment rendered against plaintiff in a Justice’s Court in Tuolumne County.

The facts set up in the complaint may be briefly stated as follows: —

On the fourteenth day of August, 1885, the defendant Brown filed a complaint in a Justice’s Court, in the county of Tuolumne, against the plaintiff here and two other persons, in which he alleged that the defendants were indebted to him in a certain sum of money, for labor and services done and performed by plaintiff for defendants, at their special instance and request.

On the 26th of September following, Brown caused a summons to be issued by the justice upon his com[4]plaint, which was served upon plaintiff in the city and county of San Francisco, where he then and has ever since resided, and was never served upon him in the county of Tuolumne. The summons so served was defective and void, because there was not attached to it a certificate under seal by the county clerk of the county of Tuolumne, to the effect that the person issuing the same was an acting justice of the peace at the date of the summons, as required by section 84y of the Code of Civil Procedure. On the -day of November, 1885, Brown caused the default of plaintiff for not answering to be entered in the cause, and thereupon judgment was made and entered against him for the sum of $252.74. Thereafter Brown caused an abstract of the judgment to be filed in the office of the county clerk of the county, and an execution thereon, under the seal of the Superior Court, to be issued to the sheriff of San Diego County. The defendant Bushyhead is the sheriff of San Diego County, and the execution so issued has been placed in his hands, and under it he is about to levy upon, advertise, and sell the plaintiff’s property, situate in his county.

It is then alleged that all the allegations in the complaint filed in the Justice’s Court, so far as the plaintiff here is concerned, are untrue; that Brown never at any time performed any work or labor for plaintiff, at his instance or request, or otherwise, and that plaintiff is not, and was not, either individually or in connection with his co-defendants, indebted to Brown in the sum named in his complaint, or in any sum of money whatever, and that he never agreed to pay him the sum alleged in his complaint, or any other sum whatever; that plaintiff never had any notice or knowledge of the commencement of the action in the Justice’s Court (except from the service of said void summons upon him), or of the default taken, or of the judgment rendered therein, or of the issuance of the execution, until de