Opinion
Department One
Hearing in Bank denied.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
Joseph M. Nougues, and Charles E. Nougues, for Appellant.
J. C. Bates, for Respondent.
Michael Mullany, for Plaintiff.
H. C. Firebaugh, for Defendant Hallidie.
JUDGES: Temple, J. Paterson, J., and McKinstry, J., concurred.
OPINION
TEMPLE, Judge
August 3, 1880, George Dougherty, one of the defendants, recovered judgment against the present plaintiff for $ 2,186, and costs. On the same day Dougherty assigned the judgment to his son, John Dougherty. September 3d, Dore appealed to the Supreme Court from the judgment. The judgment was affirmed here February 16, 1883. (Dougherty v. Dore , 63 Cal. 170.) September 4, 1880, while the appeal was pending, defendant Miller caused a levy to be made on the judgment by virtue of an execution from the Justice's Court of San Francisco, upon a judgment against George Dougherty in favor of Miller. The attempted levy was by the sheriff, who delivered to and left with Maurice Dore a copy of the writ, with a notice in writing that such property, to wit, "all the right, title, and interest in and to a certain judgment obtained in the Superior Court, department 5, of the city and county of San Francisco, in which George Dougherty is plaintiff, and Maurice Dore defendant, judgment having been rendered on the ninth day of August, 1880, against said Maurice Dore for the sum of $ 2,186, and costs"; also notifying Dore that he levied upon all moneys, goods, credits, effects, debts due or owing, or in his possession, or under his control; and requesting him not to pay or transfer the same to any one save said officer. September 27, 1880, the sheriff proceeded to sell all the right, title, and interest of George Dougherty in the judgment to the defendant Miller for the sum of twenty dollars, which was credited upon the execution and judgment in favor of Miller against said Dougherty. This action was brought by Dore under section 386, Code of Civil Procedure, to have the court determine [13 P. 622] who was entitled to receive the money, the amount of the judgment and costs, $ 2,850, being deposited in court. The court awarded the money to John Dougherty, the assignee of George Dougherty, and Miller appeals from the judgment, or a portion of it.
The Superior Court refused to allow Miller to introduce proof for the purpose of showing that the assignment to John Dougherty was fraudulent, on the ground that Miller had acquired no title to the judgment against Dore, and had no such standing as would enable him to attack the assignment. This position is sought to be maintained on the ground, first, the judgment rendered in Justice's Court is void; but in this we do not agree with respondent's counsel. The summons was sufficient, at least as against a collateral attack, under the rule laid down in Keybers v. McComber , 67 Cal. 395. Whether the alias summons was regularly issued or not is not a jurisdictional question.
In the next place, it is claimed that the judgment was not subject to levy and sale under execution. We think this point well taken. It was expressly so held in McBride v. Fallon , 65 Cal. 301. Much may be said on both sides of this question, and it has been differently decided in different states. As it has been decided in the above case, we see no reason for reopening the discussion. It is claimed that the case of McBride v. Fallon, supra, only holds that the sale could not be made as it was attempted in that case, and that the mode of levy there was different from the mode pursued here. But that ruling is expressly placed upon the ground that the judgment is but the evidence of a debt, and the statute has made no provision for attaching or levying upon evidences of debt; but that it is the debt itself, and not the evidence of it, which may be levied upon by the writ of attachment, or on execution in like manner as upon writs of attachment. And to confirm this view the court alludes to the case of Davis v. Mitchell , 34 Cal. 81, where it was held that a promissory note was the subject of levy and sale, when the sheriff could get possession of it, and could deliver it to the purchaser, and say they could not assent to the doctrine of that case. Of course it is not denied that a judgment is property, or that it can be the subject of assignment. The ruling is based entirely upon the statute. And it seems to us that it necessarily follows that the debt was by the proceeding duly levied upon. Service of the writ and notice constituted what is usually called the process of garnishment.
It is claimed that the garnishment is not sufficiently pleaded by defendant Miller. It is true, Miller claims to have bought the judgment; but in showing his title to the judgment he adopts by express reference the allegations in the complaint which show the garnishment, and adds the other facts which show the debt itself was duly levied upon. This put Miller in the attitude of a creditor, and gave him the right to attack the assignment for fraud, and the ruling denying him that right was error. The other defendants were not interested in this appeal, and the motion to dismiss, on the ground that it does not appear that the statement was served on all the adverse parties, must be denied.
Judgment reversed, so far as the same affects defendant Miller, and a new trial ordered as to the claim of said defendant.