Engelken

The plaintiff appeals from a judgment of the superior court in Alameda County refusing to prohibit the respondents from proceeding with an action originally commenced in the justice court.

In the justice court suit Engelken, the appellant, sued Manuel Faira in claim and delivery on an assigned claim from one Sanderlock for a nine year old Indian pony. The value of the pony was alleged to be $100. Manuel Faria, not Faira, was served with summons and complaint. The record shows that Sanderlock testified that he worked for Faria and for his work was to receive the pony. Thereupon default judgment was entered, not against Faira, but against Faria, for the pony, or in lieu thereof $100 and costs taxed at seven dollars, on September 26, 1919. Notice of the judgment was immediately mailed by the justice of the peace to Manuel Faira and was thereafter returned by the postoffice undelivered. Execution on the judgment was issued October 2d. On November 7th the constable demanded payment of the judgment on the execution then in his hands for levy and Faria paid the $107, saying at the time to Engelken, who accompanied the constable with his attorney, “This is a hell of a game you are…