Pacific Pneumatic Gas Co. v. Wheelock

Headnote

I. Judgment of supreme court op California on appeal.

1. NOTICE OF APPEAL.

{a) Not necessary one should appear in the judgment roll in order to render it admissible in evidence.

1. The judgment record contained an order made by the supreme court reversing a decision of the court below, also an opinion given by the court on such reversal, also an order entered in the court below, reciting the filing of the remittitur from the supreme court, reversing the order and judgment theretofore made by such court, and in pursuance such rermttit/wr ordering that judgment be entered in favor of defendant against plaintiff for $595.66, principal and interest, all in gold coin of the United States; also a postea entered in conformity with the order so entered on the remittitur, but it contained no notice of appeal. ,

Held,

that the record was admissible. It will be presumed that the supreme court became properly possessed of the cause on appeal. The absence from the record of a notice of appeal does not overcome this presumption.

II. California.

1. STATUTE LAW OF, HOW PROVED.

(a) By a volume having on its titlepage the following: “The statutes of California, passed at the fourteenth session of the legislature, 1863. Begun on Monday, the fifth day of January, and ended on Monday, the twenty-seventh day of April.

“Sacramento :

“ Benjamin P. Avery, State Printer.

“1863,”

and the testimony of a practitioner at the bar of that State, who stated that that edition was recognized by the bar and courts of that State, and was in fact the only one they had to use, but was unable to state whether he had himself used or had seen others use a volume of that edition in the courts.

This action was brought upon a judgment for costs, entered in the third district court of California, in an action brought in that court by this defendant as plaintiff therein against this plaintiff as defendant therein. The judgment was entered in favor of the defendant in that action against the plaintiff therein, upon a remittitur sent down to that court by the supreme court, reversing* with costs a judgment theretofore rendered by that court in favor of the plaintiff against the defendant.

On the trial of this action the counsel for defendant herein objected to the reception in evidence of the record of the judgment sued on, because it contained no notice of appeal to the supreme court. The objection was overruled, and an exception taken.

He also objected to the reception of a printed volume of the laws of California, on the ground that it did not purport to have been “ published by authority of the State of California,” and that it was not proved that this volume or one of the same edition had ever been admitted in the judicial tribunals of California, as

evidence of the laws existing in that State. This objection was also overruled and an exception taken.

The cause was tried before a judge without a jury. The judge before whom it was tried directed judgment for plaintiff for the costs adjudged by the judgment sued on, with interest thereon.

From the judgment in conformity with this direction defendant appealed.