Irvin v. Superior Court

SCOTT, J., pro tem. Petitioner asks a peremptory writ of mandate directing respondent Superior Court “to make its order satisfying of record the judgment in the action Phil Norton, Plaintiff, v. V. R. Irvin, Hugh Evans, Hugh Evans & Co., Inc., a Corporation, Defendants, action number 333,086, and the whole thereof”.

In that action plaintiff Norton brought suit against the defendants asking judgment for rescission of an agreement with them and for $7,000, plus interest against them and each of them. All defendants were served, and upon their failure to answer the default of each was entered and judgment was thereafter rendered rescinding the agreement and awarding plaintiff $3,500, plus interest, against defendants Hugh Evans and Hugh Evans & Co., Inc., and further-awarding plaintiff $3,500, plus interest, against defendant Irvin, who is petitioner here. On January 28, 1932, a week after the date of the judgment, Norton filed a “partial satisfaction of judgment”, setting out that defendants Hugh Evans and Hugh Evans & Co., Inc., had paid in full and judgment against them in the sum of $3,500, plus interest, and directing the clerk “to enter full satisfaction of the judgment against the defendants, Hugh Evans and Hugh Evans & Co., Inc., a corporation”. On April 23, 1934, a writ of execution was issued against the property of defendant Irvin, petitioner herein. On July 30, 1934, petitioner served and filed his notice of intention to apply for the writ of mandate here being considered.

Petitioner does not assert that the judgment in the above-mentioned case has not become final. He contends, [624]however, that judgment was for no more than $3,500 and that the satisfaction by Hugh Evans and Hugh Evans & Co., Inc., was satisfaction of the entire judgment. His view is that since the complaint asked for a joint judgment for $7,000 and the judgment rendered was on default of defendants, there could not be several judgments for $3,500 against Irvin and for $3,500 against his co-defendants.

Code of Civil Procedure, section 675, provides for the entry of satisfaction of judgment, by order of court in cases in which a judgment is satisfied in fact. “The order is to be made only where the judgment has in fact been satisfied.” (State Bank of Lansing v. McLaury, 175 Cal. 31, 32 [165 Pac. 7].) Petitioner states that “the judgment has been satisfied as a matter of law, by the filing of the satisfaction of judgment” above referred to. The contrary appears to be true.