Inga v. Blum

BARNARD, P. J. This is a motion to dismiss the appeal or affirm the judgment made under section 3, Rule V, of the Rules for the Supreme Court and District Courts of Appeal. The motion is based upon the contention that the appeal was taken for delay only and presents no substantial questions for review, and upon the further ground that appellant’s opening brief does not contain the statement required by Rule VIII, section 2, of the rules governing this court. The appellant’s opening brief contains a sufficient compliance with the rule last referred to. This is an appeal from a judgment in an action in claim and delivery brought in the county of San Diego by the respondent for the purpose of recovering an automobile *16 truck seized by the appellant, who is one of the constables in San Diego County. The appellant seeks to justify his action under a writ of execution issued out of the Justice’s Court of Temescal Township in Riverside County, which writ respondent concedes to be valid on its face. It is respondent’s position that no substantial question is presented because the judgment on which the writ of execution was based, being a judgment against this respondent, is in fact void, since the action in which that judgment was entered was neither brought in the place where the contract relied on was made nor where the respondent resided at the time suit was filed. Not only is a question presented in this regard which requires an examination of the entire transcript (City of Los Angeles v. Los Angeles-Inyo Farms Co., 126 Cal. App. 61 [14 Pac. (2d) 339]; Brown v. Gow, 126 Cal. App. 113 [14 Pac. (2d) 322]), but the appellant, in his opening brief, presents a question of reliance by an officer upon a writ regular upon its face, which may not be lightly dismissed as frivolous. The motion is denied. Jennings, J., and Andrews, J., pro tem., concurred.