This is an action in which the plaintiff obtained a decree relieving him from a money judgment there tofore obtained against him by the defendant Bauer in the justice’s court, restraining the enforcement thereof, and declaring said judgment to have been obtained without jurisdiction and to be void and of no effect. The defendants appeal from the decree and from an order denying them a new trial.

The appellants contend that the complaint fails to state a cause of action or ground for the interposition of equity, for the reason that it does not show that the plaintiff in this case has or had any defense to the action in the justice’s court. We think this contention is well founded and that the general demurrer of defendants to the complaint should have been sustained.

The complaint herein, so far as necessary to be stated, runs as follows: ‘ ‘ That heretofore, to wit, on August 28, 1897, the said defendant Bauer commenced an action in the justice’s court of the city and county of San Francisco, state of California, entitled as follows: J. J. Bauer, plaintiff v. First Doe, Second Doe, Third Doe, and Fourth Doe, associated together and doing business under the firm name and style of Burbridge & Co., defendants. That in and by the complaint filed in the said action he alleged that on the 31st day of January, 1896, at the city and county of San Francisco, state of California, the defendants named in said action made and delivered to one H. Wahl a promissory note, a copy of said alleged promissory note being set up in said complaint, and being in the words and figures following, to wit:—

The complaint then alleges that the plaintiff herein was never in fact served with summons in the justice court action, though the sheriff’s return thereon showed that he was so served. The complaint continues: “. . .and plaintiff further alleges that the pretendjed promissory note attempted to be set forth in the said action of Rauer v. Doe et als., was never signed by him,, or by any member of any firm or co-partnership of which plaintiff was a member, to his knowledge; and plaintiff further alleges that at the time of the commencement of said action of Rauer v. Doe et als., there was not due, owing or unpaid from this plaintiff, or from any firm or copartnership of which this plaintiff was a member, unto the said W. S. Ray, the sum of $120 or any other sum.”

There is no direct statement in the complaint and nothing to show that the note was not executed by the copartnership of which plaintiff herein appears to have been a member. The statement that the note was never signed by any member of any firm or copartnership of which plaintiff was a member, “to his knowledge, ” leaves it to be presumed in support of the justice court judgment that it was so signed without Ms knowledge, but in such a manner as to bind not only the firm but also the plaintiff herein in his individual capacity. The further allegation that at the date of the commencement of the justice court action nothing was due or unpaid to Bay from plaintiff leaves us to presume that at that date the one hundred and twenty dollars of the second cause of action was due and unpaid to Bauer, the plaintiff in that action, who was at that time the assignee and owner of the claim.

The causes of action set out in the justice court case were barred by limitation before the commencement of the present action; and there was nothing to show that the plaintiff in that case was guilty of any fraud in the procurement of the judgment. Hence, it would he inequitable to'set aside the judgment without an affirmative showing in the complaint that there was a good defense to the justice court action. (Gregory v. Ford, 14 Cal. 139 ; Harnish v. Bramer, 71 Cal. 155 ; Eldred v. White, 102 Cal. 600 ; Parsons v. Weis, 144 Cal. 410 .) “Equity will not overturn a judgment valid on its face unless it is an unjust judgment. ... It must be against conscience, and it must be made to appear that a like judgment would not follow in the same action or upon the same cause of action.” (Harnish v. Bramer, 71 Cal. 155 .)

This defect in the complaint is material, and was not cured by the subsequent trial, findings, and judgment. The complaint lacked an essential "and necessary allegation in a case of this character, and is fatally defective. It is therefore unnecessary to consider other questions presented in the briefs.

The judgment and order should be reversed.

Harrison, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are reversed.

McFarland, J., Lorigan, J., Henshaw, J.

73 Am. Dec. 639