Majority
p. 86GREEN v. THOMAS.
Headnote
The remedy against an execution issued on a judgment claimed to have been discharged by a decree in insolvency is by motion, and not by bill in equity for an injunction.Imlay v. Carpentier ( 14 Cal. 173 ) cited.
Appeal from the Thirteenth District.
Action to restrain defendant from enforcing a judgment in his favor against plaintiff, on the ground that the judgment had been discharged by a decree in insolvency.
The only point made in the Court below was, whether the debt from Green to Thomas was sufficiently described in Green’s schedule. The description was: “ No. 8. John W. Thomas, of Mariposa ; a judgment in District Court; amount now due about nine hundred dollars.”
The Court below held, that although the proceedings in insolvency were otherwise regular, the description was insufficient; that the judgment was not discharged; and accordingly dissolved the preliminary injunction issued to restrain the execution.
Plaintiff appeals.
Robinson, Beatty & Heacock, for Appellant, cited 2 Carr & Payne, 119; 4 Barn. & Cress, 15; Chitty on Cont. 188-9.
Heydenfeldt, for Respondent, cited 7 Cal. 428 ; 9 Id. 477 ; 10 Id. 483 , as to description ; and Imlay v. Carpentier ( 14 Cal. 173 ) to the point that plaintiff had mistaken his remedy, and that equity had no jurisdiction.
Field, C. J. concurring.
If the plaintiff is entitled to relief, he has a sufficient remedy by motion; and upon that ground the judgment is affirmed. (Imlay v. Carpentier, 14 Cal. 173 .)
Judgment affirmed.
Cases cited
- Imlay v. Carpentier 14 Cal. 173 p. 86
- McAllister v. Strode 7 Cal. 428 p. 86