Gates v. Lane

49 Cal. 266

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 3,894
• Status: Published

Opinion

By the Court Crockett, J.:

The demurrer was properly sustained. If the judgment obtained against the plaintiffs was void on the face of the proceedings in the Justice’s Court for want of jurisdiction, as the complaint avers it to have been, these plaintiffs had an adequate remedy, by motion in that Court, to arrest the execution and stay further process on the judgment. (Logan v. Hillegass, 16 Cal. 201; Comstock v. Clemens, 19 Id. 77; Sanchez v. Carriaga, 31 Id. 179; Murdock v. De Vries, 37 Id. 527.) Nor did the fact that the execution was issued by the County Clerk, on a transcript of the Justice’s docket filed in his office, obstruct the remedy by motion in the Justice’s Court. Though issued by the Clerk, the execution was subject to be recalled by the Justice who rendered the judgment.

So much of the complaint as seeks the surrender and cancellation of the note, on the ground of the parol agreement as to pasturage, was barred by the Statute of Limitations at the commencement of the action.

Judgment affirmed.

Mr. Chief Justice WALLACE did not express an opinion.