Heine Piano Co. v. Bloomer

This is an appeal from a judgment entered in favor of the plaintiff, the Heine Piano Company, a corporation, and against the said defendants, G. C. Ringolsky, Frank T. Deasy, James G. Conlan, Robert W. Dennis, and Kohler & Chase, a corporation, in an action brought (1) to vacate the satisfaction of a judgment rendered in favor of the present plaintiff and against defendants Charles and Laura Olson in an action—hereinafter referred to as action 76,831—in the justice’s court of the city and county of San Francisco, and to revive said judgment; (2) to have said judgment “offset, . . . against the judgment in action 85,133 [in said justice’s court] to the extent that one judg

[1] These last-named defendants also appeal from the order denying their motion for a new trial,- but, inasmuch as the notice of appeal was filed after the amendment of 1915 to section 963, of the Code of Civil Procedure, the appeal from the order refusing ¿ new trial must be, and is hereby dismissed. (Roberts v. Colyear, 179 Cal. 669 , [ 180 Pac. 937 ]; Rockey v. Vieux, 179 Cal. 681 , [ 178 Pac. 712 ]; Marsh v. Lapp, 180 Cal. 231 , [ 180 Pac. 533 ].)

On May 25, 1915, plaintiff commenced action 76,831 against the Olsons for the sum of $250 alleged to be owing at the time by them to the Heine Piano Company. On June 28th, the Olsons having failed to appear, judgment by default was entered against them for $303.65, which sum included costs. On June 30th, “without the consent or knowledge of or any notice other than constructive notice to the plaintiff,” Laura Olson executed and recorded a declaration of homestead and a homestead lien on the land upon which they were residing on Rhode Island Street in San Francisco. On November 29th a writ of execution was issued in action 76,831 to the sheriff of the city and county of San Francisco, and, by virtue of that writ, on December 27th the sheriff sold said Rhode Island Street property to one A. G. Mitchell, who is admitted to have been plaintiff’s agent in the transaction. On January 12, 1916, the writ of execution was returned,' satisfied.

On March 17, 1916, action 85,133 was commenced against the plaintiff in the justice’s court of the city and county of San Francisco in the name of Miss J. M. Bloomer, who, it appears, was a stenographer in the office of G.

On March 19, 1917, Mitchell having in the meantime transferred to G. O. Heine, plaintiff’s president, all the right, title, and interest which he had acquired in or to the Rhode Island Street property at the execution sale, said Heine, in behalf of the plaintiff, executed a deed conveying back to the Olsons all the right, title, and interest which either he or the corporation had in said real property.

On March 22d plaintiff moved in the justice’s court where the judgment in action 76,831 had been rendered for an order vacating, canceling, and setting aside the satisfaction of said judgment, on the ground that the entry of satisfaction was a mistake, the execution having been levied upon real property which was exempt as a homestead, and on the further ground of ignorance on the part of the plaintiff of the existence of such a homestead at the time of the execution sale.

On March 27th Heine Piano Company moved in action 85,133 for an order offsetting the judgment in that action against the judgment in action 76,831 on the grounds that Miss Bloomer, in whose name the judgment in action 85,133 stood, was not the real party in interest but was the Olsons’ assignee for collection only, that the Olsons were the true owners of the Bloomer judgment, and, therefore, that their judgment, being less than that in action 76,831, should be offset and canceled.

On April 3d defendant Deasy made an order denying plaintiff’s motion to vacate the satisfaction of judgment in action 76,831, the order reading in part: “Thereupon defendants object to" further hearing herein on the ground that the issues raised by said motion involve a decision on the title to real estate of which this court has no jurisdiction. . . . The court does now sustain said objection and on the ground of loch of jurisdiction denies the plaintiff any further hearing on its said motion.” (Italics ours.)

On April 4th defendant Conlan denied the motion made by plaintiff in action 85,133 to offset that judgment against the one in action 76,831. On the same day plaintiff commenced this action.

At the conclusion of the plaintiff’s case defendants moved for a nonsuit, but the motion was denied. The contentions made by appellants in their opening brief are the same as the grounds urged for a nonsuit: “1. The matters in issue at bar were previously determined by courts of competent jurisdiction, and hence are to be treated as res judicata. 2. The complaint does not show any equity. 3. The plaintiff . . . was guilty of laches in asking for the relief prayed. ’ ’

1. In support of their first contention appellants assert “that all of the matters and showing made in the justice’s court and upon which the justice of the peace based his decision were the same as the facts alleged in this action.” First, as to the order denying the motion to vacate the satisfaction of judgment in action 76,831.. Even if the correctness of the statement just quoted be assumed for the purposes of this discussion, it is not decisive of this question, for appellant’s position ignores the fact that the order denying the motion was not the order entered on April 5th, which purported to deny the motion without stating the grounds, but was the order made and entered on April 3d, in which the court refused to grant the motion because of lack of jurisdiction. [2] In- other words, b.y the making of the order of April 3d the power of the court to rule on the motion to vacate became functus officio. As is said in Freeman on Judgments, section 70, “the law does not authorize the correction of judicial errors under the pretense of correcting clerical errors. ... It is certain that proceedings for the amendment of judgments ought never to be permitted to become revisory or appellate in their nature; ought never to be the means of modifying or enlarging the judgment or the judgment record, so that it shall express something which the court did not pronounce, even though the proposed amendment embraces matter which ought clearly to have been so pronounced.” (See, also, Byrne v. Hoag, 116 Cal. 1 , [ 47 Pac. 775 ]; First Nat. Bank v. Dusy,

As to the effect of this order as res judicata on the plaintiff’s rights, section 1911 of the, Code of Civil Procedure provides: “That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. ’ ’ In Oakland v. Oakland Water Front Co., 118 Cal. 160 , [ 50 Pac. 277 ] it was held that where a suit was dismissed for want of jurisdiction or was disposed of on any ground not going to the merits of the action, the- judgment rendered was not a bar to another suit. This rule finds support in 7 Encyclopedia of Evidence, 811: “If'it appears that a suit has been dismissed for want of jurisdiction, the judgment of dismissal will be no bar to another action brought in a court having jurisdiction of the subject matter.” (See, also, Reynolds v. Lincoln, 71 Cal. 183 , [ 9 Pac. 176 , 12 Pac. 449 ]; 23 Cyc. 1150; Laguna Drainage District v. Charles Martin Co., 5 Cal. App. 166 , 172, [ 89 Pac. 993 ]; Shively v. Eureka Tellurium etc. Co., 5 Cal. App. 236 , 243, [ 89 Pac. 1073 ].) As already shown, the order of April 3d stated that the plaintiff’s motion to vacate the satisfaction of judgment was denied by reason of want of jurisdiction. [3] Inasmuch as this order—and not the order of April 5th— represented the court’s ruling on the motion to vacate, we think it clear that.the question whether the plaintiff is entitled to have the satisfaction of judgment in action 76,831 vacated is not res judicata.

We now turn to a discussion of the effect of the order denying the motion to offset the judgment in action 85,133 against that rendered in action 76,831. That order reads in part: “ ... it appearing to the court that the judg

2. We shall next consider appellants’ second contention that “the complaint does not show any equity.” The claim is made in their brief that “the court lacked jurisdiction to hear and determine the issues in this case. ... A court of equity cannot assume the powers of appellate jurisdiction to review the errors of the lower court.” In stating the rule on this point we cannot do better than quote from Uhlfelder v. Levy, 9 Cal. 607 , 614: “The power of one district court to restrain proceedings in another, in cases where as adequate relief can be as well had in the court in which the proceedings are pending, is denied by the former decisions of this court. . . . ‘The only ease in which it will be allowed is where the court in which the action or proceeding is pending is unable, by reason of its jurisdiction, to afford the relief sought. ’ ” (See, also, Anthony v. Dunlap, 8 Cal. 26 ; Rowley v. Howard, 23 Cal. 401 ; Crowley v. Davis, 37 Cal. 268 ; Kelley v. Kriess, 68 Cal. 210 , [ 9 Pac. 129 ]; Gregory v. Diggs, 113 Cal. 196 , 199, [ 45 Pac. 261 ].) And in Hager v. Shindler, 29 Cal. 48 , the court said: “Before the case can be considered as beyond the reach of a court of equity, it must be made to appear that the legal remedy would be adequate and complete. ’ ’ And in Merriman v. Walton, 105 Cal. 403 , [ 45 Am. St. Rep. 50 , 30 L. R.

We shall next consider the question whether the plaintiff was entitled to the relief granted, and in this connection we shall first inquire whether it was entitled to a decree vacating the satisfaction of judgment in action 76,831. The rule is thus stated in the note to Sturdivant v. Ward (Ark.), 134 Am. St. Rep. 36 : “We cannot suggest a better solution [of this question] than the general adoption of some such declaration of the law as has been enacted in California; Code of Civil Procedure, section 708. ‘ ... If the purchaser of property at sheriff’s sale . . . fail to recover possession . . . because the property sold was not subject to execution and sale, the court having jurisdiction thereof must . . . revive the original judgment. ’ The section has been construed and applied in the well-known case of Cross v. Zane, 47 Cal. 602 , and followed in Hitchcock v. Carruthers, 100 Cal. 100 , [ 34 Pac. 627 ], and Merguire v. O’Donnell, 139 Cal. 6 , [ 96 Am. St. Rep. 91 , 72 Pac. 337 ], In those cases it was held that, as the section was remedial in its character, it was to be liberally construed, and that, if the property sold was not the property of the defendant in the execution, it amounted to a sale of property not subject to execution and sale within the intent of the statute', and the purchaser was entitled to the remedies afforded by the act.” And in Scherr v. Himmelmann, 53 Cal. 312 , it was held that where a party causes an execution to issue on a judgment and it is levied on property which turns out not to belong to the judgment 'debtor, such party is entitled to bring an action in equity for the purpose of reviving the

Now, as to whether plaintiff was entitled to have that judgment offset against the one in action 85,133. Appellants claim “that Kohler & Chase, the assignor of Bloomer, has been and still is the real and beneficial owner of the Bloomer judgment,” and that the court’s finding that the Olsons were the owners thereof is without support in the evidence. Upon this point Mrs. Olson testified that she had purchased- a piano from Kohler & Chase on the installment

3. Appellants insist that plaintiff was guilty of laches (1) “in its defense in action 85,133. ... In the answer nothing was alleged by way of defense or counterclaim setting forth the judgment in action 76,831.” There are two answers to this contention. Section-855 of the Code of Civil Procedure provides that the answer to a complaint in a justice’s court may contain a denial, “and also a statement ... of any other facts constituting a defense or counterclaim, upon which an action might be brought by the-defendant against the plaintiff, or his assignor, in a justice’s court.” (Italics ours.) At the time of the commencement of action 85,133 plaintiff’s claim against the Olsons was a “satisfied” judgment, and, until that “satisfaction” was vacated, plaintiff had no counterclaim, “upon which action might be brought.” And, too, as heretofore noted, the amount of the judgment in action 76,831 was $303.65—a sum in excess of the jurisdiction of the justice’s court. (Malsof v. Vaughn, 23 Cal. 61 .) [7] It is clear that the plaintiff was not guilty of laches in action 85,133 in not pleading his claim against the Olsons. (2) Appellants claim that plaintiff was negligent in not consulting the records of the county recorder “to learn whether or not the real property of the Olsons was homesteaded before they proceeded to sell the same.” Laches is a matter to be determined from all the circumstances of the case. As already pointed out, appellants had admitted that “plaintiff had no knowledge of the fact that any such declaration was recorded.” We cannot hold that plaintiff was guilty of laches in not earlier seeking to vacate the satisfaction of the judgment.

Shaw, J., Olney, J., Wilbur, J., Lennon, J., and Angellotti, C. J., concurred.

Rehearing denied.

All the Justices concurred.