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McCUTCHEON v. WESTON.
Filed February 8, 1884.
In an action on an undertaking, reciting that “if the plaintiff shall recover judgment in said action we will pay,” etc., the allegation in the complaint that “a judgment was recovered, entered, and dócketed,” is sufficient. That there were iwo defendants, and judgment was recovered against one only, does not affect the liability on the undertaking.
R. L. McKee and B. McFadden, for respondent.
R. W. Redman, for appellant.
MYRICK, J. Action on an undertaking given under section 540, Code Civil Proc. The averments of the complaint and the provisions of the undertaking are similar to those in McNamara v. Hammerschlag, ante, 391. On the authority of that case, and Preston v. Hood, 1 Pao. REP. 487, we hold that the points taken by the appellant relating thereto are not sustained.
The plaintiff, in pleading the recovery of the judgment in the attachment suit, avers that the plaintiff in that action “recovered judgment against the defendant therein, H. Leslie, which was rendered in said action for the sum of,” etc., "which judgment was entered and docketed," etc. The plaintiff herein sued an administrator of the plaintiff in the attachment suit. In pleading his capacity be avers “that on the twentieth day of July, 1880, letters of administration upon the estate of said Robert McCutcheon, deceased, were issued by the superior court of the said county of Alameda to this plaintiff, who duly qualified as the administrator of said estate, and entered upon the discharge of his duties as such administrator; that plaintiff is now, and has been continuously ever since the said twentieth day of July, 1880, the administrator of the estate of said Robert McCutcheon, deceased." The complaint was not demurred to by reason of any alleged defect in either of these two particulars, nor because it did not state facts sufficient to constitute a cause of action, though there was a demurrer on other grounds.
The appellant presents the point in this court for the first time, that the complaint is insufficient, in each of the two particulars above noted, to sustain the judgment. We think the point not well taken. This is not an action on judgment, but it is on an undertaking. The undertaking reads, “If the plaintiff shall recover judgment in said action we will pay,” etc.; the allegation in the complaint is that judg. ment was recovered, entered, and docked. We think this sufficient. . We think the allegation as to representative capacity is sufficient to sustain a judgment, there having been no demurrer on that ground.
The point that judgment was recovered against one of the defendants only, in the attachment suit, is not well taken. The action was against two, and the undertaking was to pay “if the plaintiff shall recover judgment in said action. Why judgment was recovered against one only, we are not informed; but the court had power to render such judgment, and it was rendered in that action.
The judgment and order are affirmed.
We concur: THORNTON, J.; SHARPSTEIN, J.
SANDERSON 0. MOINTOSE.
Filed February 8, 1884
Insolvency-Remedy of creditors-Equity jurisprudenog
Fuller & Howser, fox appellant.
Park Henshaw, for respondent.
MYBICK, J. This action was bronght to compel an assignee in insolvency to perform his trust and acoount for the property assigned. The court below gave judgment of nonsuit on the ground that the plaintiff had mistaken his remedy. We are of opinion that the remedy afforded creditors, under the law regulating insolvency proceedings, is not exclusive, but that courts of equity have jurisdiction.
Judgment reversed, and cause remanded for a new trial.
Wo conour: THORNTON, J.; SHARPSTBEN, J.
Ex parte MOYNERB.
Filed February 8, 1884
Order No. 1,719, of the board of supervisors of the city and county of San Francisco, regulating the drainage and heating of public laundries, and the closing thereof on Sunday, is valid as under the police power of the state, and is not in conflict with the constitution of the United States or of this state.
Department 2. On habeas corpus.
Wilson & Perry, for petitioner.
MYRICK, J. The prisoner was arrested and is in custoig for a violation of section 4 of order No. 1,719 of the board of supervisors of the city and county of San Francisco. The ordinance was approved June 25, 1883. Section 4 declares that “no person or persons own. ing or employed in the public laundries or public wash-houses provided for in section 1 of this order, shall wash or iron clothes between the hours of 10 o'clock P. M. and 6 o'clock A. M., nor upon any por. tion of that day known as Sunday." Section 1 declares it to be up. lawful for any person to establish, maintain, or carry on the business of a public laundry or wash-house, where articles are cleansed for hire, within certain named limits, without having first obtained a certificate from the health offioer that the premises are sufficiently drained, and that the business can be carried on without injury to the sanitary condition of the neighborhood, and a certificate from the board of fire-wardens that the heating appliances are in good condition, and that their use is not dangerous to the surrounding property. The petitioner claims that the order is void, in that it conflicts with the fourteenth amendment of the constitution of the United States, and with sections 1, 11, and 21 of article 1 of the constitution of this state. We do not see that the enforcement of this order would abridge the privileges or immunities of citizens of the United States, or that it would deprive any person of liberty or property without due process of law, or deny to any person in this state the equal protection of the laws. Section 1 of article 1 of the constitution of this state declares that all men have the inalienable right of acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness. Section 11 of the same article declares that all laws of a general nature shall have a uniform operation; and section 21 declares that no citizen or class of citizens shall be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.
We do not deem it necessary to go into an elaborate and extended consideration of the propositions advanced, nor to do more than quote another section of the state constitution, and show its application to the subject in hand. Section 11 of article 11 provides that "any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws." That the regulations of the order are as to portions (perhaps all) police regulations, and as to some sanitary, we have no doubt. Those portions of the order relating to safety from fire are police regulations; that relating to drainage may also be classed as police, and is sanitary; that relating to drainage is also sanitary. It is true, all persons may acquire, possess, and protect property, and may pursue and obtain safety and happiness; but these rights must be exercised with reference to the rights of others; and whenever it is necessary for the health or protection of members of the community that wegulations should exist and be enforced, the power is given by the constitution to local authorities to make and enforce such regulations. We cannot say that proper drainage in carrying on the laundry business is not necessary to health ; neither can we say that property is secure from fire if proper precautions are not taken. The order is not discriminating and special in any such sense as to make it repugnant to the constitution. Its terms apply to all persons establishing, maintaining, or carrying on the business of a public laundry or public wash-house, where arti. cles are cleansed for hire, within certain limits. It is no more special and discriminating than the prohibition of the storage of powder or the slaughtering of animals, both of which may be necessary to be done, but for the regulation of which the power is . unquestioned. We cannot say the limits prescribed in the Code are not proper limits for public health and safety. As to the provisions of section 4 of the order, which the petitioner was charged with having violated, we can. not say it is not necessary, for the proper police and sanitary condition of the city, that the business referred to should cease during the hours from 10 o'clock P. M. to 6 o'clock a. M., and during the day known as Sunday.
The petitioner is remanded.
We concur: MORRISON, C. J.; THORNTON, J.
PETERSON v. WEISSBEIN and others.
Filed February 12, 1884.
Where a party asks a court of equity to relieve him of a judgment of law for a debt, the validity of which he does not deny, and where he bad ample opportunity for all defenses, solely on the ground that the complaint in the action was filed on a legal holiday, the case is not a proper one for such relief to be granted.
A motion denied in the justice court, and not sought to be reviewed in the superior court, will not be reviewed here.
A. J. Ridge, for respondent.
A. Burrows, for appellants.
Ross, J. The object of this suit, in which the plaintiff was successful in the court below, was to obtain a decree annulling a certain judgment rendered by a justice of the peace, and a certain sale of real property made under an execution issued upon the judg
ment. The complaint in substance charges that the defendant, Weissbein Bros. & Co., a B. and B. corporation, is, and was at the times mentioned in the complaint, a corporation organized and existing under the laws of the state, and as such, on the ninth of September, 1882, placed in the hands of a certain justice of the peace a certain promissory note executed by the plaintiff herein for $98.95, payable 60 days after its date, to one Walker or order, and which note was indorsed by Walker; that the justice of the peace, on said ninth of September, filed the note as a complaint, and in his docket entered the cause of Weissbein Bros. & Co., a B. and B. corporation, plaintiff, against A. P. Peterson, defendant, and thereupon issued a summons in the action, which was served upon the defendant therein, (plaintiff here,) and at the same time there was also served upon the defendant therein (plaintiff here) another or alias summons, which was issued in the action by the justice of the peace on the nineteenth of September, 1882. The complaint in the present action further charges that the plaintiff here (defendant in the action before the justice of the peace) failed to answer the complaint therein, and on the twentysixth day of September the justice of the peace rendered and entered a judgment in the action in favor of the plaintiff and against the defendant therein for the sum of $116.90, on which judginent an execution was, on the next day, issued and placed in the band's of the constable of the township, who levied it upon the land, which is alleged in the complaint in this action to have consisted of two separate and distinct tracts, and to have then and since been the property of the present plaintiff. The complaint further charges that, after notice, the constable sold the land at public auction to the plaintiff in the action (the defendant corporation here) for the sum of $128.40, and that thereafter, and on the twenty-first of October, 1882, the constable executed to the defendant Goldberg a certificate of sale for the land, which was duly recorded in the recorder's office of the county where the land is situate, and which, it is alleged, "still remains of record and is a cloud upon plaintiff's title, and if not removed would involve him in litigation, and might cause the loss of his said property.” It is also charged in the complaint that the ninth of September, 1882, was a legal holiday, and, further, that the constable levied upon and advertised the land for sale as separate and distinct parcels, but nevertheless sold the same in one body, for which reason plaintiff here moved the justice of the peace to set aside the sale, but his motion in that behålf was denied.
The findings of the court below are in substantial conformity to the facts alleged in the complaint. The judgment decrees null and void the judgment entered in the justice's court, and the execution sale thereunder, and quiets the plaiutiff's title to the property as against the defendants to this action, and all persons claiming under them, and perpetually estops defendants and all persons claiming under themy from setting up any title or claim thereto. With respect to the judg