White v. Espey

Justice's Couet — Jubisdiction—Lien—Tbanscbiptof Judgment. — In order to acquire a lien upon real property under Hill’s Code, $ 2103, a certified transcript of tbe judgment rendered in a justice’s court must be filed with tbe county clerk; and it must affirmatively appear from tbe transcript that tbe inferior court bad jurisdiction to pronounce judgment. Injunction — Cloud on Title. — Equity will interfere by injunction to prevent a cloud being cast upon tbe title to real property. Galbraith v. Barnard, ante, 67, distinguished.

Defendants appeal. This suit is brought to enjoin a sale of real property on execution. The material parts of the complaint are as follows: That on the twenty-ninth day of June, 1889, the justice’s court of the precinct of East Butte, Washington county, Oregon, rendered what purported to be a judgment against the plaintiffs and in favor of the defendant M. J. Espey, doing business under the firm name of the Espey Manufacturing Company, for the sum of f240.10; that said pretended judgment was rendered without jurisdiction, and said court had no right or legal authority to render the same; that no complaint setting out a cause of action against John White, plaintiff above named, had been filed in said court; that no summons had been served on either of the plaintiffs, and said court had no jurisdiction over the defendants or either of them, or over any cause of action against them or either of them, etc., and said pretended judgment was and is void. After alleging the filing of a transcript of said proceedings with the county clerk and the issuing of an execution by him, the complaint charges that said proceedings constitute a cloud on the real property described in the complaint. The defendants demurred to the complaint, which being overruled, they filed an answer. After denying some of the allegations of the complaint, the answer contains new matter as follows: That on the twenty-ninth day of June, 1889, in the justice’s court of East Butte precinct, Washington county, Oregon, a judgment was duly given and made by said court in favor of defendant M. J. Espey, doing business under the firm name of the Espey Manufacturing Company, and against the plaintiffs in this suit, in an action pending in said court last above named for the sum of $244.10, which judgment bears interest at the rate of ten per cent per annum from the date thereof; that said judgment remains wholly unpaid; that thereafter, to wit, on February 25, 1890, defendant M. J. Espey caused a transcript of said judgment to be duly filed with the county clerk of Washington county, Oregon, said transcript being in manner and form as follows, to wit: “In the Justice’s Court of the State of Oregon for the County of Washington, East Butte Precinct. “M. J. Espey (doing business under the name of the Espey Manufacturing Company), plaintiff, v. John White and Jennie White, defendants. “There was a civil action brought before me, J. De Letts, justice of the peace for East Butte precinct, Washington county, state of Oregon, for money, which plaintiff recovered judgment against defendants as follows: Therefore it is considered that the plaintiff recover of the defendants the said sum of one hundred and eighty-six dollars and twenty-five cents and his disbursements in this action, taxed at two hundred and forty-four dollars and ten cents. “Principal_$186 25 “Interest_ 40 35 “ Attorney’s fees- 10 00 “ Justice’s fees- 4 00 “ Constable fees- 3 50 “$244 10 “J. De Letts, “This June 29,1889. .“Justice of the Peace. “County of Washington, state of Oregon: ss. “This is to certify that it is a true copy of this judgment entered in my docket in the above action. “J. De Letts, “ Justice of the Peace.” The answer then alleges the docketing of the judgment by the clerk, the request for and the issuance of an execution thereon, on the fifth day of September, 1890, which execution is set out in hsec verba in the answer, the delivery of the writ to the defendant Dennis, as sheriff of Washington county for service, and the levy by him upon the real property described in the complaint. To this answer plaintiff demurred, which was sustained. The defendants made an ineffectual attempt to amend their answer, and thereupon a final decree was entered for the plaintiff, from which the defendants have appealed.