Crane v. Hirshfelder

Headnote

The complaint—the suit being to set aside a judgment of H. L. B. v. Erwin —after setting out minutely the proceedings adopted by them in having the Clerk enter up the judgment, then avers that “said proceedings and circumstances under which said judgment was entered up by said Clerk render the same void in law, the said Clerk having no power or jurisdiction to enter said judgment under the circumstances and in the manner stated, and that the same is fraudulent as against this plaintiff and tends to his great and irreparable injury;” that W., attorney of H. L. & B., was a party to the fraud ; that the judgment was without consideration—was false, covinous and fraudulent— and that E. is insolvent, states facts sufficient to constitute a cause of action; and W. being charged as a party to the fraud, is properly joined as defendant.

Appeal from the Fifth District.

Suit against Hirshfelder, Levy & Block, A. Williams, John Erwin and the Sheriff, to set aside a certain judgment as fraudulent and void, and to enjoin the sale of property levied on under execution on said judgment. The complaint averred that A. Williams, defendant, September 26th, 1860, presented to the Clerk of Alameda county certain papers fastened together, to wit: 1st, an affidavit by Williams that he, as attorney of Hirshfelder, Levy & Block, had served on Erwin a notice that said firm accepted his offer to allow judgment in their favor against him for $725.57; 2d, Erwin’s acknowledgment of service of summons and complaint with offer of judgment: 3d, cost bill; 4th, complaint; that upon these papers the Clerk, at the request of Williams, entered judgment in favor of H. L. & B. and against Erwin for the amount named, and on the same day issued execution, which was levied on certain property of Erwin, who is insolvent, having no other visible property; that when said papers were filed, no complaint had been filed and no action commenced: that this judgment was without consideration; that “ said proceedings and circumstances under which said judgment was entered up by said Clerk render the same void in law, the said Clerk having no power or jurisdiction to enter said judgment under the circumstances and in the manner stated, and that the same is fraudulent as against this plaintiff and tends to his great and irreparable injury; and that said fraudulent and void judgment was consummated under the advice and by the connivance of said

defendant Williams, who was employed, as deponent is informed and believes, by said Erwin, and confederated with him and said Hirshfelder, Levy & Block to procure to be entered said false, co-vinous and fraudulent judgment.”

The complaint also averred that on the eighth of October, 1860, plaintiff here brought suit by attachment against Erwin, on a claim subsisting against him on and before September 26th, 1860, which writ was levied on the same property, and that the Sheriff is about to sell the same on said execution. Prayer for an injunction restraining the sale and for a decree setting aside said judgment, and subjecting the property to plaintiff’s attachment.

Defendants demurred to the complaint on the grounds, among others, that the complaint did not state facts sufficient to constitute a cause of action, and that Williams was not a proper party. Demurrer sustained and final judgment for defendants.

Plaintiff appeals.