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in the hands of James H. Rice, constable, and he, at the instance of Reid & Holaday, levied upon property of the railway company, and was about to sell it, when this present action was commenced; and this is the judgment and this the execution which the railway company by this present action seeks to have enjoined. When this present action was first instituted the court below granted a temporary injunction in favor of the railway company and against the defendants, but afterwards, and upon the final trial, dissolved the injunction, and rendered judgment in favor of the defendants and against the railway company for costs, and of this last-mentioned judgment the plaintiff now complains, and by this petition in error seeks to have it reversed.

The first question involved in this case is whether, in a garnishment proceeding before a justice of the peace, under section 44 of the Justices' Code, a final judgment may be legally rendered under any circumstances against the garnishee. This question, we think, has already been answered by this court in the negative. Fitch v. Fire Ins. Co., 23 Kan. 366. See, also, Board of Education v. Scoville, 13 Kan. 18; Muse v. Lehman, 30 Kan. 514; S. C. 1 Pac. Rep. 804. In the first case cited, on pages 368, 369, the following language is used by this court:

"The trial was had under section 44 of the Justices' Code, Comp. Laws 1879, p. 709. In such a trial no pleadings are required. The affidavit for garnishinent, the answer of the garnishee, and the notice that the answer is unsatisfactory, take the place of pleadings, and all matters are heard thereon. If, upon the hearing, it is found that, at or after the service of the notice of garnishment upon the garnishee, he was possessed of any property of the defendant, or was indebted to him, the justice may, in accordance with section 42 of the Justices' Code, order the delivery of such property, and the payment of the amount owing by the garnishee, into court, or may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff, by one or more sufficient sureties, to the effect that the amount shall be paid or the property forthcoming as the court may direct. Comp. Laws 1879, p. 709, § 42. And in such a trial it does not make any difference as to what the amount of the indebtedness or the value of the property may be; for, whatever it may be, the justice has jurisdiction to hear and determine the matter, and to make the proper order therein. And such hearing and determination and order, when made, do not amount to a final adjudication as to the existence of such indebtedness, or as to the ownership of the property. Board of Education v. Scoville, 13 Kan. 18. If, however, upon the trial, under section 44 of the Justices' Code, it be found that the garnishee did not have any property of the defendant in his possession, and did not owe the defendant anything, then the order and judgment will be made and rendered in favor of the garnishee, and just such an order and judgment will be made and rendered as was made and rendered in this case; but such order and judgment will not be a final adjudication as to the rights of the parties. Where the plaintiff desires that the determination of the court as to the liability or non-liability of the garnishee shall be final, he must commence his action in the proper court under section 43 of the Justices' Code, Comp. Laws 1879, p. 709.

In the report of this case in 23 Kan. 368, the word "trial" and a comma are inserted between the word "the" and the word "affidavit,"

in the third sentence of that portion of the opinion above quoted, so as to make it read as follows: "The trial, affidavit for garnishment," etc. Why this insertion, or interpolation, was made in the printed report, we do not know. The word "trial" and the comma are not to be found, and were never placed, in any such situation in the original opinion. In our opinion, no judgment can properly be rendered under section 44 of the Justices' Code, but only an order as provided for by section 42 of such Code, and this order cannot be enforced by an execution; and therefore the judgment of the justice of the peace, as rendered in the present case, against the railway company, was rendered without jurisdiction, or, rather, in excess of jurisdiction, and is therefore utterly void as a judgment, and cannot legally be enforced as such. Amsbaugh v. Exchange Bank, 33 Kan. 100, 105; S. C. 5 Pac. Rep. 384, 387, 388, and cases there cited; In re Dill, 32 Kan. 668, 691, 692; S. C. 5 Pac. Rep. 39, 49, 50. And where a judgment is utterly void, its enforcement may be restrained by perpetual injunction. Chambers v. Bridge Manufactory, 16 Kan. 270; McNeill v. Edie, 24 Kan. 108; Mastin v. Gray, 19 Kan. 461; Earle v. McVeigh, 91 U. S. 503, 505, et seq.; S. C. 3 Cent. Law J. 689. This is particularly true where an execution, valid upon its face, has already been issued upon the judgment, and the officer has seized property belonging to the defendant in the execution and is about to sell it, as in the present case.

The judgment rendered in the present case by the justice of the peace against the garnishee, although void as a judgment, may be valid as an order, under sections 42 and 44 of the Justices' Code. It cannot, as we think, be valid as a final judgment under sections 43 and 45 of such code so as to be enforced by execution. Under section 42 of the Justices' Code the order of the justice is made on the answer of the garnishee alone. Under section 44 of such Code it is made upon a trial of the truth of the answer by the garnishee, and is made in a case where the answer of the garnishee would not alone justify such order. But the order, we think, whether made upon the answer of the garnishee alone, or upon a trial of the truth of such answer, is substantially the same order, having the same force and effect; and such order may be made at any time after the answer of the garnishee in the one case, or the trial of the truth of the answer in the other, and whether any trial has been had or not or judgment rendered or not in the principal case, except that no such order can be made if a judgment has already been rendered in the principal case against the plaintiff. Of course, the judgment provided for by sections 43 and 45 of the Justices' Code is a final judgment, and may be enforced by execution the same as other judgments; but such is not the judgment in the present case.

The judgment of the court below will be reversed, and cause re manded, with the order that judgment be rendered in favor of the railway company as prayed for in its petition in the court below. (All the justices concurring.)

(68 Cal. 73)


Filed November 25, 1885.


A judgment in partition is conclusive as to the title under which the parties hold in common, but it does not invest them with any new title, nor have the effect of changing their title; its only legal effect being to sever the unity of possession.


A defendant in partition acquiring a new and independent title by deed after he has filed his answer in a partition suit, but before a decree therein, must on the trial disclose such title, or the judgment rendered in such suit will be conclusive as to his title, and will prevent him from setting up such deed in a subsequent action to recover possession of part of the tract awarded under the judgment in the partition suit.

THORNTON, J., dissents.

In bank. Appeal from superior court, city and county of San Francisco.

I. N. Thorne, for appellant.

Fox & Kellogg, for respondent.

MCKEE, J. Appeal from a judgment for defendant and an order denying a motion for a new trial in an action of ejectment tried by the court without a jury. The motion was heard and decided upon a statement of the case proposed, amended, settled, and certified as required by sub. 3, § 659, Code Civil Proc. The grounds of the motion were (1) insufficiency of the evidence to justify the decision; (2) the decision is against law; (3) errors of law; and the statement contained specifications of the particulars in which the evidence was alleged to be insufficient and of the particular errors of law upon which the moving party intended to rely. Neither at the settlement of the statement, nor at the submission of the motion, was any objection. made to any irregularity in the proceeding on the motion. The motion was contested and submitted for decision without objecting, or reserving any right to object, that the notice of the motion was not made or given according to law. Such being the case, the attorney of the corporation defendant waived any supposable irregularity in the notice of the motion, of which he now, in this court, for the first time seeks to avail himself.

The case, as disclosed by the statement, is an action of ejectment to recover possession of four parcels of land situate in the city and county of San Francisco, and described as parts of outside land blocks Nos. 774, 775, 858, and 867. At the commencement of the action the Spring Valley Water-works was in possession of the lands, claiming to be seized in fee thereof, and that the plaintiff's right of action was barred by the statute of limitations. The plaintiff's right of action is founded upon mesne conveyances of the property from v.SP,no.13-54

one Robert S. Randall, to whom the property had been finally adjudged in severalty, on the twenty-third of December, 1875, in an action between himself and the Spring Valley Water-works and others, for the partition between them, as tenants in common, of a tract of land described as "that certain tract of land situated in the city and county of San Francisco and state of California, known as and being the south-east quarter of section 13, township 2 south, range 6 west, according to the United States survey of the state of California, and being more specifically and particularly described, as the same is delineated and shown on the map of the outside lands of the city and county of San Francisco, made under and by virtue of the provisions of order No. 800, as follows, to-wit: All those certain blocks of land lying westerly of the San Miguel rancho, and numbered, respectively, 853, 854, 855, 856, 857, 868, 869, 870, 871, 872, 945, 946, 947, 948, 949; also so much of each of the following numbered blocks of land as lies within the fences inclosing said tract of land, erected by William Winter, John Kern, and others, about the year 1861, to-wit: Blocks numbers 775, 776, 777, 778, 779, 780, 781, 852, 873, 944, 958, 957, 956, 955, 954, 953, 952, 950, 867, 858, all lying westerly of the San Miguel rancho."

To the complaint in that action the Spring Valley Water-works filed an answer in which it averred ownership "in fee and in severalty of a portion of said tract containing about thirty acres, more or less," and denied that the plaintiff was tenant in common with it, or with any other of the defendants in the action, in said lands, or owned any interest in the same in common with the defendants, or any of them. But the court found that the plaintiffs and the defendants were tenants in common of the tract of land sought to be partitioned; that the plaintiff was entitled to three-eighths undivided interest in the tract, and the Spring Valley Water-works to five-eighths undivided interest therein; and upon the interlocutory decree entered upon ascertaining the respective interests of the parties, an order for partition was entered according to law. The interlocutory decree was entered October 13, 1871, and such proceedings were had under it that there was allotted and set over to Randall that portion of the property which is described in the complaint in the present action, and to the Spring Valley Water-works a different portion of the partitioned premises. The allotments made were reported to the court, and the cour, on the twenty-third of December, 1875, "ordered, adjudged, and decreed that said report, and all things therein contained, do stand ratified and confirmed, and that the partition so made as aforesaid be firm and effectual forever." That judgment was conclusive as to the title under which the parties to the action held in common the land partitioned between them. Morenhout v. Higuera, 32 Cal. 289. But it did not have the legal effect of changing the title, nor of vesting any new or additional title in the land allotted and set off to each in severalty. It had only the legal effect of severing the unity

of possession. Wade v. Deray, 50 Cal. 376. So, at common law, when partition was made pursuant to the writ de partitione facienda, and the shares are allotted in severalty, and final judgment is given that the partition be holden firm and effectual forever, nothing further is necessary; for the partition is completely effected. The judgment of law operates to vest in each party a sole estate in his allotment; but nothing further is wrought than to affirm or ascertain the possession. Cave v. Holford, 3 Ves. Jr. 656. Prima facie, therefore, the plaintiff was entitled to judgment against the defendant for the demanded premises which had been alloted and set over to his grantor by the judgment in partition.

But by its decision the court below found ownership in fee of the demanded premises in the defendant at the commencement of the action. The decision is founded upon evidence of a new title acquired by the defendant. The evidence consisted of a deed, made on the fourth of January, 1871, by the city and county of San Francisco to George Turner, of a tract of land in the city and county of San Francisco, embracing the demanded premises; and a deed of said demanded premises executed and delivered by said Turner on the twenty-eighth of August, 1871, to the Spring Valley Water-works. This deed was obtained by the defendant after it had filed its answer in the proceedings for partition, but before the rendition of any interlocutory judgment therein. By its answer, it claimed to hold the land occupied by it adversely to the plaintiff; and, under the answer, it could have given the deed in evidence to sustain its claim, or it could have obtained permission to amend its answer so as to include the deed as evidence of a right in itself acquired pending the proceedings. In one way or the other, it was bound to disclose its adverse claims to the land, so that the court might ascertain and determine them. De Uprey v. De Uprey, 27 Cal. 329; Morenhout v. Higuera, 32 Cal. 290; Bollo v. Navarro, 33 Cal. 465. If they were not disclosed, the judgment of the court established the title, as it was found to exist in the tenants in common, at the date of its rendition, and it was conclusive upon all the parties as to whatever title or claims. to the land they had then in hand.

Presumably, the title established by the judgment was derived by the original tenants in common from the city of San Francisco as the source of title. Being tenants in common under titles derived from that source, they need not have resorted to the statutory mode of proceeding for partitioning the lands which they held under it. They could have made a voluntary partition among themselves, by each particular tenant in common receiving from all the others a conveyance of the undivided shares of those others in the particular parcels of the tract intended to be allotted to that one respectively. If that mode had been followed, it is not doubtable that a conveyance, executed and delivered at the date of the judgment, by the Spring Valley Water-works and the other tenants in common, to their co-tenant

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