Hibernia Savings & Loan Society v. Superior Court

56 Cal. 265, 1880 Cal. LEXIS 396

• Court: California Supreme Court
• Decided: July 1, 1880
• Docket: No. 7,299
• Status: Published

Opinion

Thornton, J.:

Application for a writ of review. The Court is of opinion that the judgment against the plaintiff, referred to in this case, is void. No judgment can he rendered against a corporation upon such a proceeding as was taken against the plaintiff, without an examination. There can be no judgment by default, as the statute does not allow such judgment. (§§ 719, 720, Code Civ. Proc.) If the party summoned refuses to attend, he may be compelled by the Court, and punished for contempt for disobeying the order. If the corporation or person alleged to have property of the judgment debtor, or be indebted to him, claims an interest in the property adverse to him, or denies the debt, the Court or judge can only authorize an action by the judgment creditor against such corporation or person. In such case, no judgment can be rendered by the Court issuing the order for the alleged indebtedness. (Code Civ. Proc. § 720; Hartman v. Olvera, 51 Cal. 502.)

Inasmuch as there is no appeal, the amount in controversy being less than $300, and no plain, speedy, and adequate remedy, the case is a proper one for the writ to issue; and the judgment of this Court is, that the judgment of the Court below he and is hereby annulled, that any further proceeding may be conducted according to law.

Sharpstein, J., and Myrick, J., concurred.