Opinion
APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing to vacate the judgment.
The grounds of the motion to vacate the judgment were that pending the action the defendants instituted proceedings in insolvency, and were discharged from their debts, including the debt to the plaintiff on which the action was brought. The motion was supported by affidavits, but there was no affidavit of merits apart from the statements made in relation to proceedings and discharge in insolvency, nor were these proceedings brought to the attention of the court until after the judgment was rendered.
COUNSEL:
The court had no jurisdiction to render judgment. The insolvency court had stayed all proceedings, and had discharged the defendants from all their debts. ( Home Life Ins. Co. v. Dunn, 19 Wall. 223; Gordon v. Longest, 16 Peters, 97; Kern v. Huidekoper, 103 U.S. 485; Rix v. McHenry, 7 Cal. 89.) Conceding that the court had jurisdiction, still the judgment should have been set aside. ( Bennett v. His Creditors, 22 Cal. 42; Imlay v. Carpentier, 14 Cal. 173; Engels v. Lubeck, 4 Cal. 33.) The affidavits filed with the motion, and the papers on file show merits, because they disclose a discharge from the personal obligation to pay the debt. ( Freeman v. Campbell, 56 Cal. 639; Hawley v. Campbell, 62 Cal. 442.)
D. L. Smoot, for Appellants.
McAllister & Bergin, for Respondent.
There was no affidavit of merits. ( Parrott v. Den, 34 Cal. 80.)
OPINION
The additional facts sufficiently appear in the opinion.
PER CURIAM.
This is an appeal from a final judgment and an order denying a motion to vacate and set it aside.
Defendants were regularly served with process. One of them appeared, demurred, and answered, the other did not. The demurrer was overruled. The case was tried; but at the trial defendants were not present by themselves or counsel, and the court, after hearing the evidence of the plaintiff, gave judgment against both defendants.
The court had jurisdiction of the subject-matter and of the persons of the defendants, and there is no error apparent on the face of the judgment roll.
On the motion to vacate the judgment there was no affidavit of merits. Such an affidavit was indispensable as the basis of the motion. ( Parrott v. Den, 34 Cal. 79; Francis v. Cox, 33 Cal. 323; Bailey v. Taafe, 29 Cal. 422; People v. Rains, 23 Cal. 129.)
Judgment and order affirmed.
Hearing in Bank denied.