Town of Hayward v. Pimental

California Supreme Court Jun 1, 1895 No. No. 15812Published

Before: Britt

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Holding. The court held that a recorder's court judgment, even if based on a defectively stated cause of action, is not void if the court had jurisdiction, and therefore the recorder has a ministerial duty to issue an execution on that judgment.

Issues

Whether a judgment based on a defectively stated complaint is void or merely erroneous and subject to collateral attack.
Whether a motion to quash an execution is an appropriate method to review errors in the underlying judgment.
Whether the issuance of an execution by a recorder is a ministerial duty enforceable by mandamus.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In this instance the judgment entered by the recorder was not void; being rendered by a court which had jurisdiction of the parties and of the defectively stated cause of action, it was valid and operative until appealed from or reversed.”

“The duty of the recorder to issue the execution is purely ministerial; he has no discretion in the matter; and the respondent is entitled to the writ to enforce performance of such duty.”

Synopsis

Recorder’s Court—Action to Recover License—Allegation of Ordinance—Judgment—Quashing Execution.—In an action in a recorder’s court of a municipal corporation of the sixth class to recover a license tax imposed by a municipal ordinance, the failure of the complaint to set forth the provisions of the ordinance otherwise than by reference to its title and date of passage will not invalidate a judgment for the amount of the license. Such a judgment cannot be collaterally attacked on a motion to quash an execution issued thereon, and is valid and operative until appealed from or reversed.

Id.—Execution Erroneously Recalled—New Execution—Mandamus.— If the recorder erroneously directs an execution which had been issued under such judgment to be returned unsatisfied, and his order is complied with, he may be compelled by mandamus to issue another execution, his duty to do so being purely ministerial.

Id.—Hearing Application for Mandamus—Judgment on Pleading.— Where the answer to an affidavit for a writ of mandate presents no issues of fact, and raises only issues of law, the court may, under section 1094 of the Code of Civil Procedure, hear and determine the matter on the pleadings. Such a hearing is a sufficient compliance with the requirements of section 1088 of such code, that “ the writ cannot he granted by default,” and that “the case must be heard by the court whether the adverse party appear or not.”

Id.—Demurrer to Answer—Recitals in Judgment.—A recital in the order sustaining a demurrer to such an answer that the matter had been previously “ submitted to the court for consideration and decision,” and a recital in the judgment granting the writ that the “ cause came on for hearing on the twenty-first day of May, 1894, to which day the same had been duly and regularly continued, on the demurrer of said relator to the answer of said respondent,” sufficiently shows that there was a hearing and a submission, not merely of the demurrer, but of the cause on the pleadings. If the recitals were incorrect their incorrectness should be shown on appeal by a bill of exceptions or otherwise,

Britt, C. The respondent, the town of Hayward, in Alameda county, is a municipal corporation of the sixth class, and the appellant is the judge of the recorder’s court of said town. That court is provided for in section 882 of the Municipal Corporation Act of 1883. An ordinance of the town imposed a license tax upon persons engaged in certain classes of business. One Freeman carried on business within the purview of the ordinance and refused to pay the tax. Thereupon an action was commenced by the town of Hayward in said recorder’s court against said Freeman for the recovery of the amount of such tax then due, together with cer[388]tain incidental fees and damages. The complaint in such action was filed August 1, 1893; summons was issued and regularly served. Freeman made default, and on August 12, 1893, after a hearing had and evidence taken upon the allegations of the complaint, judgment was entered by the appellant here, in said recorder’s court, in favor of the town and against said Freeman for the amount claimed and costs, making a total of thirty dollars and five cents. A writ of execution was issued for the enforcement of the judgment, but before any levy thereunder the defendant, said Freeman, moved the recorder’s court to recall and quash said execution, “ on the ground that the complaint in said action did not state facts sufficient to constitute a cause of action, and that the judgment therein entered was null and void.” On September 11, 1893, such motion was sustained by the appellant here, and the town marshal, who held the writ, was ordered to return the same “ without service and to stay all further proceedings in the matter”; which order he obeyed. On September 22, 1893, the respondent by its attorney demanded of appellant that he issue another execution in that action, but he refused to do so. This proceeding was then instituted in the superior court to obtain a writ of mandate to compel compliance with such demand.

Appellant, in response to the complaint or affidavit on which respondent founded its application for a mandamus, filed an answer wherein he set up the circumstances of said motion to quash the writ of execution, and that he had “ fully heard all and singular the evidence and argument offered by the respective parties upon such motion in the said action, and as such recorder, and as such recorder’s court,” after full consideration, determined said motion, and ordered that the writ of execution be quashed. He made no other defense. The superior court sustained a demurrer to the answer, and at the same time rendered judgment directing that the 'writ of mandate issue as prayed for.

Town of Hayward v. Pimental

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