City of Sacramento v. Burke

SHAFTER, J. There are nine general objections taken to the judgment in argument, and they are resolved by counsel into thirty-one distinct points. The case was n.ot heard at the bar and no brief has been filed by the respondents.

The action is upon a bond given in aid of an application for an injunction restraining a tax sale. But the injunction was an anachronism and so was the bond. The sale intended to be forbidden took place before the injunction was served on the tax collector (Elliott v. Osborne, 1 Cal. 396) and before it was granted also. The sale was on the 15th of February, 1858. The injunction is not dated, but was filed on the 16th, and the parol proof shows that it was served on that day. So far as the sale is concerned, the injunction failed for want of subject matter. To that extent contempt was impossible. The “certificate of sale” which the tax collector is forbidden by the injunction to .issue had reference to a certificate based on the prospective sale which it was the purpose of the bill to enjoin.

There are other grounds of objection which we consider to be well taken, but we do not, under the circumstances, feel called on to discuss them.

Judgment reversed and new trial ordered.

We concur: Sanderson, J.; Sawyer, J.; Currey, C. J.; Rhodes, J,