Foote v. Richmond

42 Cal. 439

• Court: California Supreme Court
• Decided: October 15, 1871
• Docket: No. 2,807
• Status: Published

Opinion

By the Court, Sprague, J.:

The objection to the power of attorney from Gelston to Clough as evidence, on the ground of defective acknowledgment, was cured by subsequent evidence of a power properly acknowledged, admitted by the Court without other objection than that the evidence came too late—the plaintiff having closed his evidence in chief. The Court, notwithstanding this objection, admitted the evidence, which, in the exercise of a sound discretion, he could properly do; and I think in this there was no abuse of this discretion. (Mowry v. Starbuck, 4 Cal. 274; Priest v. Union Canal Co. 6 id. 170; Lisman v. Early, 5 id. 199.)

The objections to the judgment roll in the case of Mesick v. Milne et al. as evidence are not well taken. It appears from said judgment roll that the action was originally commenced for the foreclosure of a mortgage upon certain real estate, given by Milne March 9th, 1859. The original complaint was filed March 1st, 1862; summons issued thereon against Milne alone. Subsequently, on the 19th of May, 1862, upon discovery that Milne, after the execution of the mortgage, had conveyed the mortgaged premises to Zabriskie and wife, plaintiff, by leave of the Court, filed a supplemental complaint, alleging the fact, and making Zabriskie and wife defendants.

Defendant Milne was personally served with the summons on the 15th March, 1862, in Nevada Territory. On the 2d day of July, 1862, the consent of Milne, by his attorney, G-. D. Hall, that a decree be taken against him in the case, pursuant to the prayer of the complaint, was filed. This consent is in writing, signed by Hall as Milne’s attorney, and is dated 15th March, 1862, the day on which service of summons was made on Milne. On the 14th day of June, 1862, the defendants Zabriskie and wife duly acknowledged service of summons and copy of the complaint, and consented that decree be entered against them as prayed for, which consent was in writing, duly signed and acknowledged by Zabriskie and wife. The decree was entered on the 2d day of July, 1862, and recites that it appeared to the satisfaction of the Court that the defendants duly consented thereto.

I think that the written consent of defendants, as filed, sufficiently shows a voluntary appearance of defendants, and that the Court had jurisdiction of their persons. But even if this evidence of voluntary appearance were not deemed sufficient—from the recital of the decree that it appeared to the satisfaction of the Court that the defendants have duly consented that decree be entered against them—it must be presumed, against collateral attack of the decree, that the consent of the defendants was presented to the Court in such a manner and form as to give the Court jurisdiction of their persons at the date of the rendition of the decree.

The fourth and fifth points urged by appellant are not well taken. The deed or writing from John A. Sutter, Jr., to Brannan, Bruce, Graham, and Wetzlar was properly admitted in evidence, as was also the deed of Moore and Welty to plaintiff. If the subsequent evidence failed to establish a compliance with the conditions precedent contained in Sutter’s deed by the grantees therein, or if the evidence failed to show that any portion of the demanded premises were within the calls of the Moore and Welty deed, appellants have not specified these as grounds of their motion for a new trial. The only specified grounds of their motion for a new trial found in their statements relate to errors of law in the admission of evidence and in denying defendant’s motion for nonsuit. There are no proper specifications under the general head of insufficiency of the evidence to justify the .findings.

The defendant’s motion for nonsuit upon the grounds stated was properly denied. The evidence of plaintiff clearly shows that the property in controversy is within the Sutter grant, and within the calls of the deeds intermediate connecting plaintiff with the Sutter title, and strongly tended to show that the condition precedent in the deed from Sutter, Jr., to Brannan, Bruce, Graham, and Wetzlar had been fully performed by the grantees therein named to the entire satisfaction of the grantor.

Judgment and order affirmed.