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19 Cal. 77

Comstock v. Clemens

California Supreme Court

Decided July 1, 1861

California Supreme Court · decided 1861-07-01

Clemens sued Comstock in a Justice’s Court for the balance of an account. Summons issued and the following return made thereon by the party deputized to serve it: “I hereby certify that I left a copy of the within in hands of Mrs. E. H. Comstock.” Upon the return day, defendant not appearing, judgment was rendered for plaintiff and execution issued, under which the Constable was proceeding to sell certain personal property previously attached in the suit.

Good law ✅— No negative treatment on recordhow we know

Decided 1861-07-01

How this case has been cited

Cited by 9 later decisions — most recently April 1944

9 state decisions

20186118701880189019001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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On the motion to dismiss, Field, C. J. at the July term delivered the opinion of the Court

¶1— Cope,J. concurring.

¶2This is a motion to dismiss the appeal on the ground that the plaintiff has failed to give security for costs after being required under sections five hundred and twelve and five hundred and fourteen of the Practice Act, he being a nonresident. Notice requiring such security was served on the twelfth of December, and the appeal was perfected on the nineteenth of January. No order staying proceedings accompanied the notice, and on the day following its service judgment was rendered in the action. It was too late to ask a dismissal of the action after judgment was rendered, and the undertaking on appeal furnishes sufficient security for the costs which may be subsequently incurred. Motion denied.

On the merits, Field, C. J. at the October term delivered the opinion of the Court

¶3—Baldwin, J. and Cope, J. concurring.

¶4The plaintiff seeks to enjoin the sale of certain personal property under an execution issued upon a judgment recovered against him in a Justice’s Court, and bases his claim for relief upon the ground that the Court never acquired any jurisdiction of his person. He avers that the summons issued in the action, in which the judgment was entered, was never served upon him. If this averment be true, he has an effectual remedy by motion to the Court to set the execution aside. The Justice possesses the power at all times to arrest process issued upon judgments entered in his docket which are void. If upon a proper presentation of the facts, the Justice should deny the motion, the plaintiff can appeal to the County Court from the judgment, if the time for that purpose has not elapsed, and raise by motion there the question as to the jurisdiction of the Justice. The appeal would be upon a question of law, and would of course be heard upon the papers in the action, or upon a statement prepared. (See sec. 625, Pr. Act, as amended in 1855.) But if the time to appeal has elapsed, the plaintiff can apply to the County Court for a writ of certiorari, and by that proceeding obtain a review of the action of the Justice in rendering the judgment, so far as the question of jurisdiction is concerned.

¶5Judgment affirmed.

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