Scherr v. Himmelmann

Kevtvad of Judgment.—Where a party causes an execution to be issued on a judgment, and it is levied on property which turns out not to have belonged to the judgment debtor, such party is entitled to bring an action in equity for the purpose of reviving the original judgment, and setting aside the credit upon the execution.

Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco. The complaint alleges that certain proceedings were had which resulted in a judgment, in his favor against the defendant for the recovery of two thousand eight hundred and four dollars; that an execution issued and the Sheriff levied upon a certain lot of land; that plaintiff was the highest bidder at the sale thereof, bidding the sum of fifteen hundred dollars, which sum was credited on the execution. The complaint further alleges that the defendant had not at the time of said sale, or at any time theretofore, and that he has not had at any time since, the possession of said premises, or any part thereof, and that said defendant had not at that time, or at any time theretofore, any right, title, interest, or estate, legal or equitable, or color of title, in or to the said premises, or any part thereof. That plaintiff did not discover that the defendant had no title to or interest in the premises until about the 8th day of April, A, D. 1874, when he caused to be made an abstract. of title to the premises from the public records of the City and County, and took the advice of counsel thereon. That immediately thereafter the plaintiff demanded of the defendant payment of said sum of fifteen hundred dollars, so bid and credited as aforesaid, or that the said credit be set aside, and that afterwards, to wit, on or about the 18th day of December, A. D. 1874, the plaintiff tendered and delivered to the defendant a reconveyance, duly executed and acknowledged, of all the right, title, and interest in or to the premises purporting to have been sold, as aforesaid, to the plaintiff, and at the same time demanded of defendant payment of the said sum of one thousand five hundred dollars in coin, credited as aforesaid on the writ, or that the said credit be set aside. That the defendant has ever since retained, and does now retain, the possession of the reconveyance delivered to him as aforesaid, but has always refused, failed, and neglected to pay to the plaintiff the said sum of one thousand five hundred dollars, or any part thereof, or to consent that the credit be set aside. Plaintiff alleges that such credit was given under the mistake and belief that defendant was the owner of the land sold on execution by reason of the existence on record of a deed of bargain and sale from one Doherty to the defendant of the lot levied upon, but that Doherty never had any title to the land. Then follows the prayer: “ Wherefore, the plaintiff prays that the said sale made by the said Sheriff, as aforesaid, be set aside, and that the said credit of fifteen hundred dollars returned on said writ be also set aside, and that the said judgment be reinstated and revived, and execution thereon, be issued, the same as if the said sale had not in fact been made, nor the said credit given; and for such other and further relief as may be meet, and for costs of suit.” At the trial, after a demurrer had been overruled, counsel for the defendant admitted all the allegations of the complaint, whereupon the plaintiff rested the case; and counsel for the defendant then moved the Court that the complaint be dismissed, on the ground that the pleaded and admitted facts in the complaint did not constitute a cause of action, or entitle the plaintiff to the relief demanded in the complaint, or to any relief in the action. The Court denied the motion, and held and decided that the complaint did state facts sufficient to give a Court of Equity jurisdiction, and to entitle the plaintiff to the relief demanded in the complaint, to which ruling and decision defendant, by his counsel, duly excepted, and the Court ordered judgment to be entered in favor of the plaintiff, and against the defendant, as prayed for in the complaint.