51 P. 767 | Idaho | 1897
This action was commenced by the plaintiff to foreclose a mortgage. Judgment of foreclosure was rendered April 6, 1895, On February 3, 1897, the defendant Susan L. Curtis served notice of motion and statement of motion to set aside the judgment, for want of jurisdiction in the court to render said judgment, which motion was heard on February 26, 1897, and, by order of the trial court, overruled, from which order said defendant appeals.
• The principal contention of the appellant is that the mortgage in question was void, for the reason that the acknowledgment thereto was not made and certified in the manner re
Title 6 of chapter 3 of the Civil Code of Idaho, covering sections 3950 to 3976, inclusive, of the Bevised Statutes, contains all of the statutory law of Idaho relating to acknowledgments of instruments both by married as well as hy unmarried persons. This chapter covers all acknowledgments, and points out and directs how they shall be made, and how certified; and, after directing how acknowledgments shall be made and certified, said chapter, at section 3971, provides as follows: “When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the district court to obtain a judgment correcting the certificate.” In said chapter the legislature have provided all necessary rules relating to the acknowledgment of instruments, and the certification thereof, and have provided for the correction of defective certificates of acknowledgment. Appellants contend that section 3971, above quoted, does not apply to certificates of acknowledgment by married women. To
It is urged, however, that the judgment reforming said certificate of acknowledgment was based upon a stipulation of the attorneys for the respective parties, and not upon evidence, and that there are no findings of fact in the case made by the trial court, as required by sections 4406 and 4407 of the Bevised Statutes. This is an appeal from an order made after judgment, and by section 4819, of the Bevised Statutes, the papers to be used on this appeal are “notice of appeal/’ “judgment or order appealed from,” and all “papers used on the hearing in the court below”; and by section 4821 of the Bevised Statutes, the copies of the papers used on the appeal must be certified to be correct by the clerk or the attornej’s. The certificate of the clerk to the transcript before us is as follows:
“State of Idaho,)
County of Ada. j SS’
“I, Charles S. Kingsley, clerk of the district court of the third judicial district of the state of Idaho, in and for the ■ county of Ada, do hereby certify that the above and foregoing copies are full, true, and correct copies of the complaint, sup-lemental complaint, exhibit ‘A’ attached, answer of Susan L.*659 Curtis, three (3) stipulations of counsel, decree of court, notice of motion, motion, order overruling motion, and notice of appeal, with indorsements thereon, and that the same are all the papers used on the hearing in' the said district court on the motion to set aside the judgment and sale of real estate, in the case of The Bunnell & Eno Investment Co., Plaintiff, v. Susan L. Curtis et al., Defendants, and that an undertaking on appeal, in due form, has been properly filed in said cause. Witness my hand and the seal of said court, this twentieth day of May, A. D. 1897.
«[Seal] CHARLES S. KINGSLEY,
«Clerk, District Court, Ada County, Idaho.”
And, in addition to the foregoing certificate of the clerk, the judge who tried the motion made the following certificate:
«State of Idaho, 1 County of Elmore. J SS‘
«I hereby certify the above and foregoing papers are all that were used on the motion to set aside the judgment and decree heard in the district court in and for Ada county on the twenty-fifth day of February, 1897.
«C. O. STOCKSLAGER,
«District Judge.”
We are unable to tell from the transcript before us all that is contained in the judgment-roll in this case. We are not authorized to conclude that the trial court rendered judgment in this case without evidence, or upon the said stipulation. Nor can we tell from the record before us whether findings of fact were made by the trial court or not. There is no evidence before us as to whether there were findings of fact or not, or whether such findings were waived or not. In the absence of evidence on these points, one of two presumptions exists, to wit, that the trial court made all necessary findings, or that such findings were waived, The record before us shows conclusively that the trial court had jurisdiction of the subject matter of the action, and of the persons of the defendants. This being true, the judgment, however erroneous it may be, is not void.