Comstock v. Clemens

Citations

• 19 Cal. 77

Syllabus

<p>Where defendant, December 19th, under sections five hundred and twelve and five hundred and fourteen of the Practice Act, served on plaintiff, a nonresident, notice to give security for costs, the notice not being accompanied with an order staying proceedings, and on the next day judgment was rendered for defendant, and plaintiff appealed to the Supreme Court: Held, on motion to dismiss the appeal, that, after judgment, it was too late to move to dismiss the action; that the undertaking on appeal is sufficient security for costs subsequently incurred, and that the motion must be denied.</p> <p>Where plaintiff seeks to enjoin a sale of personal property under an execution issued upon a judgment recovered against him in a Justice’s Court, on the ground that the summons was never served on him, and therefore that the Justice never acquired jurisdiction of his person: Held, that plaintiff’s remedy is by motion in the Justice’s Court to set aside the execution.</p> <p>Held, further, that if the Justice should deny the motion, plaintiff can appeal to the County Court from the judgment, if the time for appeal has not elapsed, and raise by motion there the question as to the jurisdiction of the Justice. The appeal would be on a question of law, and would be heard on the papers in the action, or on a statement.</p> <p>Held, further, that if the time for the appeal has elapsed, plaintiff can apply to the County Court for a writ of certiorari, and thus review the action of the Justice in rendering the judgment, so far as the question of jurisdiction is concerned.</p>