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Simmons v. Threshour

118 Cal. 100 Court Department Two. Decision date 1897-09-10 Docket Sac. No. 211 English

Judges Chipman, C., and Searls, C., concurred.; McFarland, J., Temple, J., Henshaw, J.

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p. 100
[Sac. No. 211.
Department Two.
September 10, 1897.]
GEORGE SIMMONS, Appellant, v. MARION THRESHOUR, Administrator of the Estate of William Gibson, Deceased, Respondent.

Headnote

Ejectment—Evidence of Plaintiff’s Title—Foreclosure of Mortgage— Loss of Judgment-roll—Judgment-book—Recitals in Judgment.—In an action of ejectment, when the plaintiff claims title under the foreclosure of a mortgage against the defendant, and a sheriff’s deed under the order of sale of the mortgaged premises, and it appears that the judgment-roll in the action of foreclosure was lost, the judgment-book is competent evidence of what matters were passed upon and determined by the court, and the recitals in the judgment showing acquisition of jurisdiction over the defendants are at least prima facie evidence of the truth of the facts recited, and of the validity of the judgment, and the judgment-book should be admitted as part of plaintiff’s proofs, together with the sheriff’s certificate of sale, and the deed founded upon it.
APPEAL from a judgment of the Superior Court of Siskiyou County. J. S. Beard, Judge.
The facts are stated in the opinion.
James F. Farraher, for Appellant.
Gillis & Tapscott, for Respondent.

This action was ejectment for certain real estate in Siskiyou county. At the trial plaintiff offered in evidence a mortgage, covering the demanded premises and other lands, to him executed by several persons of whom Gibson, originally the defendant herein, was one; also an entry in the judgment-book of

p. 101
tbe eotirt purporting to be tbe record of a judgment in a former action prosecuted by said plaintiff against tbe said mortgagors, including Gibson, for the foreclosure of said mortgage; such judgment contained recitals that it was shown to tbe court by satisfactory evidence that all tbe defendants in that action bad been duly served with summons in tbe county, and bad failed to answer and their default had been duly entered; that tbe facts alleged in plaintiff’s complaint were proved, etc; these were followed by the usual directions for tbe sale of tbe mortgaged premises. Plaintiff further offered a certificate of sale issued, to him by tbe sheriff, also tbe sheriff’s subsequent deed, both founded on said judgment and appearing to be regular in form; they showed, if the judgment was valid, that plaintiff as purchaser at his own foreclosure sale acquired the title of defendant to the premises in suit here. The clerk of the court testified that he had made diligent search in the archives of his office for the judgment-roll in said action of foreclosure, but was unable to find or produce it. All the said documentary evidence was excluded by the court on the objection of defendant that the same was not accompanied by the judgment-roll.

The judgment-book is part of the records of the court, and is the final repository of the determination of the court upon every cause which passes to judgment (Code Civ. Proc., sec. 688); it is, of course, a judicial record, and is competent evidence of what matters were considered and passed upon by the court (Code Civ. Proc., secs. 1904, 1905); it is indeed the most permanent memorial of those matters ordained by law to be kept. As the record offered in this instance was competent evidence of the final adjudication in the former suit, so its recitals showing acquisition of jurisdiction over the defendants therein were evidence of the facts recited; the judgment thus carried on its face evidence of its own validity (Whitney v. Daggelt, 108 Cal. 232 ; Howard v. McChesney, 103 Cal. 536 ; People v. Harrison, 84 Cal. 607 ); consequently, it should have been admitted as part of plaintiff’s proofs, together with the sheriff’s certificate and deed founded upon it.

We are not unmindful of the decision in Wickersham v. Johnston, 104 Cal. 407 , 43 Am. St. Rep. 118 , and the previous cases there followed (Harper v. Rowe, 53 Cal. 233 ; Mason v. Wolff, 40

p. 102
Cal. 249 ; Young v. Rosenbaum, 39 Cal. 646 ), nor do we now impugn the principle on which they proceed, viz., that to render a judgment admissible in evidence it must be shown to be a valid judgment, and that the appropriate- method of doing this is to produce the roll so that it may be seen whether the court had jurisdiction to determine the cause. But in none of those eases does it appear that facts showing that the court had jurisdiction were recited in the judgment itself; since such recitals are evidence of their own truth, as numerous decisions of this court establish, they necessarily (when consistent with other parts of the judgment) supply the absence of the technical roll to the extent of rendering the judgment at least prima facie competent as evidence. Besides, Wickersham v. Johnston, and Young v. Rosenbaum, were cases of foreign judgments, between which and domestic judgments it may be that a distinction lies as to mode of proof. (Estate of Eichhoff, 101 Cal. 600 .) The judgment appealed from should be reversed.

Chipman, C., and Searls, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is reversed.

McFarland, J., Temple, J., Henshaw, J.

Cases cited

Statutes and regulations cited