Sharpstein, J., dissenting. I dissent. This appeal is by the defendant from a judgment that he be perpetually enjoined from levying any execution or other process upon any of the property of the plaintiff for the collection of one thousand dollars, the value of lumber for which he, defendant, obtained judgment in the superior court of Los Angeles County in the suit therein wherein defendant herein was plaintiff and plaintiff herein defendant; and that defendant herein further be enjoined from attempting to or encumbering the property of plaintiff herein by any lien, by reason or virtue of said judgment, to the extent of said one thousand dollars, or from demanding any sum of money by reason or by virtue of said judgment to the extent of one. thousand dollars, value of said property; and defendant herein was required to satisfy said judgment in said superior court to the extent of said one thousand dollars.
Professor Pomeroy says: “It was a settled doctrine of the equitable jurisdiction, and is still the subsisting doctrine except where it has been modified or abrogated by [320]statute, or has become obsolete through the enlarged powers of the law courts to grant new trials, that where the legal judgment was obtained or entered through fraud, mistake, or accident, or where the defendant in the action, having a valid legal defense on the merits, was prevented in any manner from maintaining it, by fraud, mistake, or accident, and there had been no negligence, laches, or other fault on his part or on the part of his agents, then a court of equity will interfere at his suit and restrain proceedings on the judgment which cannot be consistently enforced.”
The material allegations of the complaint are: “ That the plaintiff, a constable, by virtue of a writ of claim and delivery issued out of a justice’s court, in an action wherein one Wilson and others were plaintiffs, and Laughlin and Berkle were defendants, levied upon and took possession of 29,274 feet of lumber; that thereafter an action was commenced by the defendant herein against the plaintiff herein to recover the possession of said lumber, and for damages for the detention thereof; that action was tried, and a judgment was rendered in favor of the plaintiff herein. On appeal to this court by the defendant herein, said judgment was reversed, and the cause remanded for a new trial, which -was after-wards had, and a judgment rendered in favor of the defendant herein and against the plaintiff herein, that he return the lumber so seized by him, or upon failure to do so, he pay in lieu thereof $1,000, and $250 damages for detention,” etc. “That after the rendition of said judgment and the release of said property by order of said superior court, an action was commenced in said justice’s court against said Laughlin and Berkle, and a writ of attachment issued therein and placed in the hands of the plaintiff herein, as such constable as aforesaid, and said plaintiff, in pursuance of said writ, attached the said lumber, and held the same in his possession until judgment in said action was rendered in said justice’s court in favor of said Laughlin and Berkle, when plaintiff herein, by order of said justice’s court, re[321]leased said lumber from said attachment, and turned the same over to the defendant herein, but plaintiff herein failed to take a receipt from said defendant herein for said lumber, and said defendant herein continued to prosecute his said action of claim and delivery in said superior court against plaintiff herein; that on the trial of said action in said superior court, plaintiff herein was not permitted to give evidence of the return of said lumber to defendant herein, because said return had not been pleaded in said action.”
After judgment was rendered, plaintiff’s and defendant’s attorneys agreed the plaintiff would pay defendant $150, and that defendant would accept that sum in full satisfaction of said judgment; that after the lapse of more than ten days after plaintiff was informed of said agreement, he tendered said $150 to defendant’s attorney, who refused to accept the same, and repudiated said agreement.
Plaintiff made no motion for a new trial. The attorney who conducted his defense in the action is insolvent. The complaint was demurred to by the defendant herein on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled.
Did the court err in overruling said demurrer? In other words, does the complaint state facts sufficient to constitute a cause of action?
The only ground stated in the complaint for equitable relief of the kind prayed in this action is, that the plaintiff bad a perfect defense, which he did not plead, to the action in which the execution of judgment rendered against him in said action is sought to be enforced. Why said defense was not pleaded is not stated. It is not alleged that the defendant herein is in any way responsible for the omission. The attempt to introduce evidence to prove that defense was defeated by the objection that such evidence was not admissible under the pleadings. The ruling of the court in sustaining said objection is not complained of, but plaintiff alleges that [322]he then ascertained “ for the first time ” that his attorney had not pleaded said defense.
It does not appear that any application was made to the court to amend the answer so as- to obviate the objection to the introduction of evidence to prove the only defense, so far as disclosed by the complaint in this action, the plaintiff had to the action which defendant was prosecuting against him. That such an amendment might have been allowed under section 473 of the Code of Civil Procedure is made clear by various decisions of this court.
No motion for a new trial — although a new trial may be granted on the ground of accident or surprise which ordinary prudence could not have guarded against — was made. (Code Civ. Proc., sec. 657.)
It is alleged that defendant's attorney agreed with plaintiff's attorney to accept $150 in full satisfaction of the judgment, and that plaintiff tendered that sum more than ten days after the agreement was made, and after the time within which notice of motion for a new trial might be given; but it is not alleged that plaintiff was prevented from giving the notice by reason of the pendency of said agreement. And within six months after the judgment was rendered, the court in which it was rendered might have relieved the plaintiff therefrom, provided said judgment was taken against him through his mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., sec. 473.)
Chancellor Kent says: “The rule is, that chancery will not relieve against a judgment at law on the ground of its being contrary to equity, unless the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defense, or unless he was prevented from availing himself of the defense by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” (Foster v. Wood, 6 Johns. Ch. 87.)
“ A court of equity does not interfere with judgments at law, unless the complainant has an equitable defense [323]of which he could not avail himself at law because it did not amount to a legal defense, or had a good defense at law which he was prevented of availing himself of by fraud or accident, unmixed with negligence of himself or his agents.” (Hendrickson v. Hinckley, 17 How. 443.)
Here the plaintiff had a good defense at law, but he was not prevented from availing himself of it by fraud or accident, unmixed with negligence of himself or agent. No element of fraud or accident is apparent. But the negligence of the plaintiff or his agent is conspicuous.
The application of the rule laid down by the eminent authorities to which I have above referred leaves the plaintiff no equities whatever. I think the party who employs an attorney who appears and conducts his defense cannot make the negligence of such attorney a ground for equitable relief from a judgment which might have been prevented by .reasonable diligence. I know of no case in which the incompetency or neglect of an attorney has been held to be a sufficient ground for the relief prayed and granted in this case.
The complaint, in my judgment, does not state facts sufficient to constitute a cause of action, and the demurrer to it on that ground should have been sustained.