Moore v. Martin

Sanderson, J., delivered the opinion of theCourt:

Neither the papers nor the proceedings in the case of Peter Quivey v. John M. Murphy were prepared or conducted according to the most approved forms, it must be admitted; but we are of the opinion, nevertheless, that the judgment is at least valid as against a collateral attack. And this is so, whether the record, which is to be consulted for the purpose of determining that question (under the Code of 1850, which was then in force,) be held to consist only of the judgment, or to include, also, the other papers,which, under the statute now in force, make a part of the judgment roll. If the - Court had jurisdiction of the person of the defendant and the subject-matter, the judgment is good against a collateral attack, however erroneous it may be. How stands the case, then, if we take the judgment alone as" constituting the record ? The Court had jurisdiction of the'defendant, for the judgment recites:

“Now comes the plaintiff by his attorney, and the defendant in proper person,” etc. (Hahn v. Kelly, 34 Cal. 391.) It had jurisdiction of the subject-matter, for it was a money demand for the sum of $300, principal, and $216, interest, due on a judgment of a Justice of the Peace, in favor of the plaintiff and against the defendant; and the judgment was for that sum. According to the decisions of this Court, made since this judgment was rendered, the judgment of the Justice was void, for excess of jurisdiction; and that of the District Court was, for that reason, erroneous, but not void, and therefore valid as against a collateral attack.

If the other papers be taken as a part of the record, there was an express waiver in writing of process, and a voluntary appearance on the part of the defendant. The cause of action upon which the Justice’s judgment was rendered Avas referred to in the complaint, and stated to have been a promissory note, which was, also, with the judgment of the Justice of the Peace, exhibited to the Court as a part of the plaintiff’s cause of action. In view of these facts, it is doubtful if the judgment of the District Court would be vulnerable, even as against a direct attack. But, as already suggested, it is immaterial whether these papers be considered as a part of the record under the Code of 1850 or not, and we therefore leave the question open.

The judgment being valid—that is to say, not void—and never having been reversed or set aside, the sale of Murphy’s interest in the property was also valid, and the deed from the Sheriff to Quivey, of the 19th of August, 1851, vested the title in the latter, if the deed was not void by reason of its having been made in less than six months after the sale, and if the Court did not err in allowing the Sheriff to prove the execution and delivery of the deed by parol.

The only ground upon which it is plausibly contended that the Court erred in, permitting the defendant to prove the execution and delivery of the deed by the parol testimony of the Sheriff is that thereby the Sheriff was allowed to contradict his own return endorsed upon the execution, in which he certified that “John Moore, plaintiff's attorney, was the purchaser at $180, and has paid the costs.” If this return be read, as claimed by counsel for plaintiff, as showing that Moore purchased in his own right, and not in his capacity of attorney for Quivey, the latter’s title, if his deed was valid, was unaffected by it; for the purchaser’s title in no respect depends upon the return, but upon the judgment, sale and deed. (Cloud v. El Dorado County, 12 Cal. 128; Clark v. Lockwood, 21 Cal. 220.) But we think the return, upon its face, shows that the sale was made to Moore in his capacity as attorney for Quivey. Had the return merely said that “John Moore, plaintiff’s attorney, was the purchaser at $180,” it might be, as contended by counsel for plaintiff, that the words “plaintiff’s attorney” would be held to be descriptio persones merely. But the statement that he' paid, not his bid of $180, but the costs, is very significant. Had he purchased in his own name, and had the Sheriff so understood it, he would have been required to pay not the costs, but the hid, which he did not pay, but receipted for on the back of the execution. It would be a very strange proceeding for the purchaser, who is not the judgment creditor, to receipt on the back of the execution for the amount of his bid, instead of paying it to the Sheriff. By such a proceeding, the judgment creditor would hardly come into the proceeds of the sale. But where the property is bid off by the plaintiff in the execution, or by his attorney for him, the universal practice is to receipt for the amount of the bid, less the costs, upon the back of the execution, and pay the Sheriff his costs only. To pay money to the Sheriff merely to have it returned would be an idle ceremony. This return on the execution must be read by the light of this practice, and when so read, we think its meaning is not doubtful.

The deed to Quivey from the Sheriff, however, was void, because it was made before the expiration of six months after the sale, for which reason the Sheriff had no power to make it. (Gross v. Fowler, 21 Cal. 392; Bernal v. Gleim, 33 Cal. 668.) The force of these cases, however, the plaintiff seeks to overcome, by attacking the ^Redemption Law of 1851 as unconstitutional, so far as this and other like titles are concerned. The grounds upon which this attack is made are, that the judgment in Quivey v. Murphy was rendered before and was an existing contract at the time the Redemption Law of 1851 took effect, and that Quivey was entitled to have it enforced according to the Practice Act of 1850, by which sales were absolute; and that his right could not be taken from him without impairing the obligation of his judgment. The levy of the execution was made before, but the sale was made after the Redemption Law of 1851 took effect.

We do not consider it necessary to discuss this constitutional question. We are saved that labor by the very able dissenting opinion of Justice Heydenfeldt, delivered in the case of Thorne v. The City of San Francisco (4 Cal. 154.) We agree with him that the Legislature had power to provide that all judicial sales of real estate thereafter to be made, whether upon judgments then existing or upon judgments thereafter to be obtained upon contracts then existing, should be made subject to redemption, without violating either the Federal or State Constitution. Besides, we regard the case of Tuolumne Redemption Company (15 Cal. 515) as overruling the case of Thorne v. The City of San Francisco (4 Cal. 127.)

Judgment and order reversed and new trial granted.