Winrod v. Wolters

GRAY, C.— The defendant Welters commenced .an action against Bullock, Whitmore, Turner et al., as mining partners doing business under the firm name of Harmonía Mining Company. In said suit a writ of attachment issued, and under it the sheriff took into his possession certain property supposed to belong to the copartnership defendants in said action. Thereupon the plaintiffs in this case, under the provisions of section 1206 of the Code of Civil Procedure, gave notice by verified statements of their claims against the defendants in that ease for labor performed within sixty *401 days next before said attachment, which notice was served as provided by the statute. It was then discovered by the plaintiff therein, Wolters, as well as by the labor claimants, that the Harmonía Mining Company was a corporation, and not a partnership, and nothing further was done in that action. The labor claimants then commenced the action now before us on appeal, in which they make Wolters, the Harmonía Mining Company (a corporation), and Busch, the sheriff who levied the attachment, defendants.

The complaint sets up the foregoing facts and avers “that the plaintiffs have no speedy or adequate remedy at law or by motion in said suit No. 1002 (the attachment suit), and that the Harmonía Mining Company (a corporation) is insolvent.” It also alleges: “That these plaintiffs heretofore moved in said case, No. 1002, for an order requiring the aforesaid sheriff to sell said attached property, but that the court on the objection of said J. C. Wolters denied the motion, and that they thereafter moved in said case for permission to file a cross-complaint therein, alleging substantially the same facts as aré herein alleged and bringing in said sheriff and said Harmonía Mining Company (a corporation) as new parties, but that this motion, like the other, was on the objection of said J. C. Wolters, denied.”

It is also averred that unless restrained Wolters will attempt to dismiss the suit No. 1002 and attempt to release the property from attachment. The prayer of the complaint is, that Wolters be enjoined from the threatened dismissal and release; that the lien of these plaintiffs as preferred creditors under said section 1206 on the attached property, be foreclosed, and said property sold to satisfy the demands of these plaintiffs, together with costs; and that plaintiffs have a deficiency judgment against the corporation, and general relief. The defendants answered, a trial was had, resulting in a judgment denying plaintiffs all relief except a money judgment against the corporation for the aggregate amount due them. Execution was issued upon this judgment and levied upon the same property taken in the attachment suit. Thereupon Wolters moved to quash the execution on the ground that the judgment is void for the reason that the demand sued on by any of the plaintiffs does not equal, but *402 is less than, three hundred dollars. This motion was granted. The plaintiffs appeal from that part of the judgment denying the foreclosure and equitable relief, and from an order denying them a new trial, and also from the order recalling and quashing the execution.

We think the refusal of the equitable relief was correct. In the first place, section 1206 of the Code of Civil Procedure gives only a preferred claim'against the debtor and prescribes the manner of enforcing this claim. It carries with it no lien upon the debtor’s property, and says nothing about a lien. When the legislature intends to give a lien, it says so, and prescribes the conditions under which it shall exist, as in the Mechanics’ Lien Law and in the statutes giving laborers liens upon certain property. Had the legislature intended to confer a lien in the case under consideration, there was nothing to prevent it from saying so in apt words. It must be, then, that the law confers no lien, and there being no lien there could be no foreclosure.

Nor can the equitable jurisdiction of the court be invoked where the parties have an adequate remedy at law. A plain, speedy, and adequate remedy at law was open to the plaintiffs. When they discovered that the defendant was a corporation and not a partnership, they might have brought attachment suits in the justice’s court (their respective claims being under three hundred dollars) and attached all this property as the property not of any partnership but as the property of the corporation. If they had found attachments ahead of theirs against the corporation, they could then have proceeded to enforce their preferred labor claims under the statute; or if the plaintiffs had sought to amend their complaint in the original action against the partnership so as to make the corporation a defendant therein, then also these labor claims could be secured under the statute. The plaintiffs have gone out of their way in asking for relief of an equitable nature when they had an ample remedy at law.

We also think the action of the court proper in quashing the execution and ordering the property released therefrom.

The complaint in this action shows affirmatively that no plaintiff has a claim against the corporation defendant equal to or greater than three hundred dollars. It also shows that *403 plaintiffs had no joint interest in the aggregate of their claims, but that each had a separate, claim, and was entitled only to a separate judgment against the corporation for the amount of his claim. The court, therefore, had no power to enter the joint judgment that it did enter, and, the several claims each being less than three hundred dollars, no jurisdiction of the subject-matter of the action. The judgment was therefore void on the face of the record, and the execution likewise void. And it is immaterial whether the other creditors of the corporation had such interest as would entitle them to move in the premises or not. The court has the power of its own motion to declare that void which clearly appears to be void on the face of the records.

(People v. Greene, 74 Cal. 400 .

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) And the court’s action in referenec to the execution may be upheld on this theory.

We advise that the order quashing the execution be affirmed, that the judgment appealed from be affirmed as it now stands, and that the order denying a new trial be also affirmed.

Haynes, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the order quashing the execution is affirmed, and the judgment appealed from is affirmed as it now stands, and the order denying a new trial is also affirmed.

McFarland, J., Lorigan, J., Henshaw, J.

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5 Am. St. Rep. 448 , and note.