Murdock v. De Vries

Citations

• 37 Cal. 527
• 1869 Cal. LEXIS 90

Syllabus

<p>Injunction upon a Judgment.—The collection of a judgment by default will not bo enjoined, upon the ground of fraud, where there was no promise, misrepresentation, or understanding between the parties by which the defendant in the judgment was deceived or misled to make default, and the only circumstance relied upon or proved as fraud is the fact that the plaintiff in the judgment obtained more relief than he was entitled to.</p> <p>Idem.—An action was brought to enforce a lien upon certain premises for a street assessment in San Francisco without asking for personal relief. The defendant made default, and the plaintiff took a judgment, including personal relief also. The defendant brought an action to enjoin the collection of the judgment upon the ground of fraud, and upon trial offered no proof of fraud except the judgment roll. Held, first, that the fraud cannot be predicated of such a proceeding ; second, that such a judgment will not be enjoined; third, that if such a judgment bo void pro tanto, the remedy is by motion to set it aside; fourth, that if it be merely erroneous, the remedy is by appeal. Whether such a judgment is void pro tanto or only erroneous, left open.</p>