Frazier v. Crowell

52 Cal. 399

• Court: California Supreme Court
• Decided: July 1, 1877
• Docket: No. 5486
• Status: Published

Opinion

A purchaser at a Sheriff’s sale may take an assignment of judgments against the defendant in the execution. The payment by Crowell to the Sheriff did not effect a redemption. She did not pay the McCracken judgment. Tile statute concerning redemptions must be strictly followed. (Dickenson, v. Gilliland, 1 Cowen, 498; People v. Coveil, 18 Wend. 593; People v. Sheriff of Broome, 19 Wend. 87 ; Waller v. Harris. 20 Wend. 555; Ex parte Raymond, 1 Denio, 272; Ex parte Peru Iron Company, 7 Cowen, 560.)

Birch & Griffith, for the Respondent.

Who are redemptioners is no longer an open question under the Code. This case is on all fours with and conclusively decided in Sharp v. Miller, 47 Cal. 84, 85.

By the Court :

The appeal is taken from the judgment; the findings of the Court below are not attacked, and the general question is whether the findings support the judgment which the defendant obtained below. We are of opinion that they do. The ninth finding of fact is in the following words: “Ninth. That said defendant Helena Crowell, alias Golinski, has a good and perfect title to said property.” If it be claimed that this finding, though among the findings of fact, is in its substance a conclusion of law, what is to be said of the fourth finding, by which the plaintiff’s case is attemptéd to be supported ? That finding is as follows: “ Fourth. That at the time of said redemption, said McCracken judgment was in full force and unpaid, and a valid and subsisting lien upon the property described in the complaint.” Might not the existence of the lien be also characterized as a question of law? The McCracken judgment was rendered in the Court of a Justice of the Peace, and in order to operate a lien it was necessary that an abstract of the judgment should be filed in the office of the County Recorder. (Code Civil Procedure, sec. 900.) The finding in this respect (third) is, that “ a certified copy of said McCracken judgment was duly recorded in the office of the Recorder,” etc.

A “ certified ” copy is not an “ abstract,” and the statute (Ibid. 897) makes the distinction and prescribes the exact form in which the abstract is to be prepared. This is an innovation upon the former statute, (Practice Act, sec. 599) which required a “transcript of the judgment” to be filed in the Eecorder’s office.

By whatever rule these findings are to be tested, as being ab- • solute findings of fact, or mere conclusions of law, the appellant is not entitled to have the judgment given below disturbed here.

Judgment affirmed.

At the January Term, 1878, in passing upon an application for a rehearing in this case, the Court delivered the following opinion:

It is true, as claimed in the petition for a rehearing, that the redemption made under the McCracken judgment was made before the taking effect of the Cqde of Civil Procedure, and that, therefore, the recording of a certified copy of the judgment in the Eecorder’s office was sufficient to create a lien upon the premises in controversy, and to this extent the opinion heretofore filed must be modified.

But it is not claimed in the petition that the finding, ninth in number, as follows: “Ninth—That said defendant, Helena Crowell, alias Golinski, has a good and perfect title to said property,” (adverted to in the former opinion) is not sufficient in itself to support the judgment for the defendant rendered below.

The action is ejectment, and the finding just recited is not attacked as being without support in the evidence. The appeal is taken directly from the judgment, and assumes that the findings are correct in point of fact. It is true that the record contains a number of findings, besides the ninth finding just adverted to, but there is no necessary conflict between the ninth finding and the others. The latter concern the various steps taken about the Sheriff’s sale, the redemption, etc.; but if it is perfectly consistent with all the findings to assume that the title, “ good and perfect,” which the defendant is found to have had at the trial of the action, is the very title which was the subject of the redemption, and which the defendant may have purchased from the plaintiff subsequently to the delivery of the Sheriff’s deed on November 20th, 1874, and before the commencement of the action, or possibly, the true title to the premises outstanding at the time of the redemption proceedings, and in the hands of a stranger to these proceedings, and from whom the defendant may have subsequently, and before the commencement of this action, purchased.

In short, under the established rules of practice prevailing here, the plaintiff cannot, in this condition of the findings, disturb the judgment, except through a proceeding by which the correctness of the findings in point of fact might be inquired into. (Smith v. Acker, ante.)

We are satisfied with the judgment heretofore rendered, and the petition for a rehearing is denied.