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APPEAL from a judgment of the Superior Court of Modoc County.

The facts are stated in the opinion.

Spencer & Raker, for Appellant.

Ewing & Claflin, for Respondent.

FOOTE, C.-This is an action for damages against a sheriff for the alleged failure to return a writ of execu tion.

A demurrer was filed to the amended complaint, stat ing as grounds therefor,-1. "That said amended complaint does not state facts sufficient to constitute a cause of action against the defendant as sheriff of Modoc County; 2. That said amended complaint does not state facts sufficient to constitute a cause of action; 3. That said amended complaint is ambiguous and uncertain in this: It does not appear with certainty therein whether or not this action is sought to be maintained against the defendant as sheriff of Modoc County, or against him in his individual and private capacity."

This demurrer was sustained, and the plaintiff declining to amend, judgment was duly given in favor of the defendant, from which this appeal is prosecuted.

It is urged upon us, because of the want of an allegation in the complaint, that the sheriff's fees were paid, that the pleading in question was demurrable.

That was a matter which the sheriff might perhaps have set up in an answer by way of defense, joined with a statement that he had refused to receive and serve the writ until such fees were paid, but the complaint was not demurrable for not stating that such payment was made.

It is claimed that the execution does not state the county where the judgment roll was filed, and was therefore void, under section 682 of the Code of Civil Procedure.

The writ states that "on the eighth day of November, 1884, in the superior court of the county of Lassen, and state aforesaid," the judgment was recovered. The statute provides that a judgment roll shall be filed in the county where the judgment is recovered. (Code Civ. Proc., sec. 670.) It is to be presumed that the clerk of the superior court, whose duty it was to make up and file the judgment roll, did so, and therefore it intelligently appeared upon the face of the writ that the judgment roll was filed in Lassen County.

It is further alleged that the writ was void because it did not state the amount of the judgment, or the amount actually due thereon.

It is true that neither the amount of the judgment nor the amount actually due thereon are stated in such manner as that the exact amount either due or for which the judgment was rendered can absolutely and without doubt be ascertained, but it is certain that the sheriff was informed by the language of the writ that the judgment was rendered for at least the sum of $390, which he was commanded to make by levy, distress, and sale out of the defendant's property.

These imperfections in the writ could have been amended. (Code Civ. Proc., sec. 1128, subd. 8.)

If amendable, the writ was not void, but only voidable, and should have been served and returned by the sheriff. (Freeman on Executions, sec. 103; Hibbard v. Smith, 50 Cal. 511.)

It is further argued that the writ was void because issued under an order incident to a decree of divorce, before the defendant had been given an opportunity to show cause why he had not obeyed the order of the

court.

Section 139 of the Civil Code, and section 1007 of the Code of Civil Procedure, are as follows:

"Where a divorce is granted for an offense of the husband, the court may compel him to provide for the

maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support as the court may deem just." (Civ. Code, sec. 139.) "Whenever an order for the payment of a sum of money is made by a court pursuant to the provisions of this code, it may be enforced by execution in the same manner as if it were a judgment." (Code Civ. Proc., sec. 1007.)

In view of these provisions, we fail to see any force in that contention on the part of the respondent.

We think from an inspection of the whole complaint that it was not doubtful in what capacity the defendant was sued. It is clear that the action was brought against him as the sheriff of Modoc County.

For these reasons, the judgment should be reversed, and the court below directed to overrule the demurrer.

BELCHER, C. C., and HAYNE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is reversed, and the court below directed to overule the demurrer.

PATERSON, J., and BEATTY, C. J., dissented.

[No. 12920. In Bank.-July 4, 1889.]

EZRA A. CROSSMAN, APPELLANT, v. C. J. DAVIS, RESPONDENT.

ESTOPPEL-RES ADJUDICATA-ACTION For Partition-DISMISSAL UPON AGREEMENT OF COMPROMISE.-The dismissal of an action for partition of real estate, under a special agreement of compromise involving other disputed matters, is a bar to any claim of title thereto by the plaintiff or his grantee with knowledge of the agreement and dismissal, as against the defendant or his grantee in a subsequent action for partition of the same real estate.

APPEAL from a judgment of the Superior Court of the county of San Bernardino.

It appears from the findings of the court below that the prior action referred to in the opinion as having been compromised and dismissed was an action for partition of the same real estate brought by the grantor of the appellant against the grantors of the respondent; and that the compromise involved a release and discharge of all claims between the parties, and the settlement and dismissal of another action. The further facts are stated in the opinion of the court.

Crossman & Woodside, for Appellants.

Rowell & Rowell, and A. B. Hotchkiss, for Respondent. The dismissal in the former suit was by agreement, and the same effect will be given it as is given a retraxit at common law. (Freeman on judgments, sec. 262, and cases cited; Merritt v. Campbell, 47 Cal. 543; Phillpots v. Blaisdel, 10 Nev. 19.)

WORKS, J.-Action for the partition of real estate. Findings and judgment for the defendant, that he was the owner of all the property in controversy.

The appeal is from the judgment, and comes to us on the judgment roll.

The only real question presented by the record is, whether or not a certain agreement between the grantors of the parties to this action, by which said parties compromised and dismissed an action pending between them, involving the title to this same property, was a bar to the plaintiff's claim to an interest therein. The court below found that the dismissal of the action under a special agreement involving other disputed matters was sufficient to bar the plaintiff's claim, and in this we think the court was right. (Merritt v. Campbell, 47 Cal. 542.)

The plaintiff had full knowledge of the agreement and dismissal, and must be held to have been bound thereby. Judgment affirmed.

MCFARLAND, J., PATERSON, J., THORNTON, J., Sharp STEIN, J., and BEATTY, C. J., concurred.

[No. 12946. In Bank.-July 4, 1889.]

WILLIAM A. FRANKLIN ET AL., APPELLANTS, v. W. J. DUTTON, RESPONdent.

PLACE OF TRIAL-REAL ACTION-REFOrmation of CONTRACT OF SALE.An action for the reformation of a contract of sale of land must be tried in the county where the land is situated, and cannot be changed therefrom to the place of the defendant's residence. Under section 392 of the Code of Civil Procedure, an action for the determination in any form of a right or interest in real estate must be tried in the county where the land is situated.

APPEAL from an order of the Superior Court of Santa Barbara County changing the place of trial.

The facts are stated in the opinion of the court.

B. F. Thomas, for Appellant, cited Code Civ. Proc., sec. 391; Sloss v. De Toro, 77 Cal. 129; Baker v. Fireman's Fund Ins. Co., 73 Cal. 182; Bliss's Code Pleading, sec. 475; Friedman v. Macy, 17 Cal. 230; Fish v. Fowlie, 58 Cal. 374; Janes v. Throckmorton, 57 Cal. 384; Leese v. Clark, 20 Cal. 388; O'Neil v. O'Neil, 54 Cal. 187; Watts v. White, 13 Cal. 324; Ring v. McCoun, 10 N. Y. 268.)

Hall & Rodgers, for Respondent.

The action, being merely to correct a mistake in a contract, is not for the determination of any interest in real property, under section 392 of the Code of Civil Procedure, and was removable to the city and county of San Francisco under section 395 of the Code of Civil Procedure. (Loehr v. Latham, 15 Cal. 418; Hanchett v. Finch, 47 Cal. 192; Rowland v. Coyne, 55 Cal. 1; Buell v. Dodge, 57 Cal. 645; Watkins v. Degener, 63 Cal. 500; Heald v. Hendy, 65 Cal. 321; Le Breton v. Superior Court, 66 Cal. 27; More v. Superior Court, 64 Cal. 345.)

SHARPSTEIN, J.-This action was commenced in the superior court of the county of Santa Barbara for the

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