Opinion
APPEAL from a judgment of the Superior Court of San Joaquin County.
COUNSEL:
J. H. Budd, for Appellant.
J. C. Campbell, for Respondents.
OPINION
The facts are stated in the opinion of the court.
THE COURT.
The appeal is from a judgment rendered on failure of plaintiff to amend her complaint, after an order of court sustaining a demurrer thereto, on the ground that the complaint does not state facts constituting a cause of action.
The action is brought to enjoin the defendant Brown, a constable, from selling certain real property of plaintiff under execution, issued upon a judgment rendered and entered by a justice of the peace, in an action wherein plaintiff was defendant, and the present defendant, Beiso, was plaintiff.
There is no averment in the complaint herein that copy of the original complaint filed in the Justices' Court, as well as copy of summons, was not served on the present plaintiff, nor that copy of the amended complaint in the action in the Justices' Court was not served on plaintiff, or on Patrick Farrington (first named as a defendant in that action in the amended complaint), nor even that the plaintiff or Patrick did not appear and answer such amended complaint. For aught that appears in the present complaint, the cause was tried in the Justices' Court, upon the issues made by the amended complaint and the answers thereto of Patrick Farrington and Rosanna Farrington -- the plaintiffs herein.
This possibility, or presumption, is not removed by the statement in the present complaint that the plaintiff Rosanna had no "knowledge" of the justice's judgment for more than thirty days after [4 P. 27] its rendition. There is no legal presumption that she was personally present at the trial, or when the justice rendered or entered his judgment.
Judgment affirmed.