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Nevada Bank v. Dresbach

63 Cal. 324 Court Cal. Decision date 1883-04-20 English

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p. 324
[Department One.
April 20, 1883.]
THE NEVADA BANK OF CALIFORNIA, Respondent, v. WILLIAM DRESBACH et al., Appellants.

Headnote

Judgment—Jurisdiction—Appeal. — Where an appeal from a judgment is heard on the judgment roll, and it appears that the court had jurisdiction of the subject-matter, and of the parties to the action, and the judgment roll fails to disclose any error, the judgment must be affirmed.
Id. — Motion to Vacate—Affidavit of Mebits.—An affidavit of merits is indispensable as the basis of a motion to vacate a judgment.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing to vacate the judgment.
The grounds of the motion to vacate the judgment were that pending the action the defendants instituted proceedings in insolvency, and were' discharged from their debts, including the debt to the plaintiff on which the action was brought. The motion was supported by affidavits, but there was no affidavit of merits apart from the statements made in relation to proceedings and discharge in insolvency, nor were these proceedings brought to the attention of the court until after the judgment was rendered. The additional facts sufficiently appear in the opinion.
p. 325
D. L. Smoot, for Appellants.
The court had no jurisdiction to render judgment. The insolvency court had stayed all proceedings, and had discharged the defendants from all their debts. (Home Life Ins. Co. v. Dunn, 19 Wall. 223 ; Gordon v. Longest, 16 Peters, 97; Kern v. Huidekoper, 103 U. S. 485 ; Rix v. McHenry, 7 Cal. 89 .) Conceding that the court had jurisdiction, still the judgment should have been set aside. (Bennett v. His Creditors, 22 Cal. 42 ; Inlay v. Carpentier, 14 Cal. 173 ; Engels v. Lubeck, 4 Cal. 33 .) The affidavits filed with the motion, and the papers on file show merits, because they disclose a discharge from the personal obligation to pay the debt. (Freeman v. Campbell, 56 Cal. 639 ; Hawley v. Campbell, 62 Cal. 442 .)
McAllister & Bergin, for Respondent.
There was no affidavit of merits. (Parrott v. Den, 34 Cal. 80 .)

This is an appeal from a final judgment and an order denying a motion to vacate and set it aside.

Defendants were regularly served with process. One of them appeared, demurred, and answered, the other did not. The demurrer was overruled. The case was tried; but at.the trial defendants were not present by themselves or counsel, and the court, after hearing the evidence of the plaintiff, gave judgment against both defendants.

The court had jurisdiction of the subject-matter and of the persons of the defendants, and there is no error apparent on the face of the judgment roll.

On the motion to vacate the judgment there was no affidavit of merits. Such an affidavit was indispensable as the basis of the motion. (Parrott v. Den, 34 Cal. 79 ; Francis v. Cox, 33 Cal. 323 ; Bailey v. Taafe, 29 Cal. 422 ; People v. Rains, 23 Cal. 129 .)

Judgment and order affirmed.

Hearing in Bank denied.

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