Sanchez v. Carriaga
Sanchez v. Carriaga
Opinion of the Court
This is an appeal from an order refusing to dissolve an injunction. The motion was heard on complaint and answer. The judgment in the case of Carriaga v. Sanchez et al., copied into the transcript, is not a part of the answer, or of the papers upon which the injunction was granted, or upon which
The suit was brought to restrain a sale under execution issued upon a judgment, on the ground that the execution is void upon its face, for reasons stated, and the further ground that the judgment upon which it was issued is also void—an absolute nullity upon its face—and to restrain the issuing of any other execution upon said void judgment. It is alleged that one of the defendants is insolvent and irresponsible, so that in case á sale should be made under the void judgment and execution, no adequate redress could be had against him in a suit to recover damages resulting from the trespass in selling under a void judgment and execution ; but nothing is said as to the responsibility of the other two defendants. The only equities relied on are the threatening to sell under a void judgment and execution, and to issue further executions upon the same void judgment, and the insolvency of one of the defendants. We think the complaint presents no case for an injunction. If the judgment upon which the execution is based and the execution itself are void upon their face, the County Court has ample power to afford speedy and adequate relief. If the judgment is void, the Court has entire control over the process and can arrest it. The County Judge also, upon a proper application, has authority to order a suspension of the execution of the writ till a motion before the Court to recall or quash it can be heard. The case of Logan v. Hillegass, 16 Cal. 201, is directly in point. The action was for an injunction and to annul a judgment claimed to be void because it appeared from the record that the Court had not acquired jurisdiction of the defendant. A demurrer for want of equity was sustained. Mr. Chief Justice Field, in deciding the case on appeal, said: “If, for any of these reasons, the judgment be absolutely void, as contended by counsel, the appellant has a perfect remedy, by application to the District Court, to quash the execution. The Court can at any time arrest all process issued by its Clerk on judgments which are void.” (Ib. 202; see also Chipman v. Bowman, 14 Cal. 158;
Order refusing to dissolve the injunction reversed, and the District Court directed to enter an order dissolving the injunction and dismissing the complaint.
Reference
- Full Case Name
- THOMAS A. SANCHEZ v. MANUEL A. CARRIAGA, T. D. MOTT, C. R. AYERS, and S. SCHREWSBERRY
- Cited By
- 10 cases
- Status
- Published
- Syllabus
- Record on Appeal to Supreme Court.—A judgment in another case, printed in the transcript on appeal from an order refusing to dissolve an injunction, which is not made a part of the complaint or answer by averment, and was not one of the papers upon which the injunction was granted, or upon which the motion to dissolve was heard, is not a part of the record. Injunction to restrain Sale on Execution.— If a judgment upon which an execution issues, and the execution itself, are void upon their face, an injunction will not he granted to restrain a sale of property levied on under the execution, or the issuing of any other execution on the judgment. Power of Court to stay Execution on Motion.—If a judgment upon which an execution issues and the execution itself are void upon their face, the Court has power on motion to afford relief, and can arrest the process. Power of Judge at Chambers over Executions.—A Judge at chambers has authority to order a suspension of proceedings under an execution until a motion before the Court to recall or quash it can be heard. Complaint to enjoin Execution.—A complaint to enjoin the sale of property under an execution, and the issuance of another execution on the judgment, is devoid of equity, which only avers that the judgment and execution are void on their face, and the insolvency of one of the defendants.