Donner v. Palmer, 23 Cal. 40

Donner v. Palmer

23 Cal. 40 | Cal. | 1863

Crocker, J.

delivered the opinion of the Court-Horton, J. concurring.

*44This is an action to recover the possession of a one hundred vara lot in the City of San Francisco, the plaintiff claiming to he the owner of the entire estate. During the pendency of the action Bradley intervened, claiming, as against both plaintiff and defendant, that he was the owner of the undivided one-fourth of the lot, and entitled to the possession to that extent. The issue between plaintiff and the intervenor was submitted upon an agreed statement of facts. The issues between the plaintiff and the defendants were tried by a jury, except those relating to certain tax titles, which were submitted to the Court. The jury returned a verdict in favor of the plaintiff against the defendants and the intervenor; the Court found in favor of the plaintiff upon the questions relating to the tax titles,' and on the first day of March, 1862, judgment was accordingly entered in favor of the plaintiff against the defendants and the intervenor, dismissing the complaint of the intervenor, and for the recovery of the possession of the premises and costs. On the sixth day of March, 1862, the defendants and the intervenor each served and filed notices of motions for a new" trial, and on the twentieth day of December, 1861, the Court made an order denying defendants’ motion, and granting the motion of the intervenor, adding, “ or that the judgment be modified as to him.” On the sixteenth day of January, 1863, the Court, on motion of the plaintiff’s attorney, made an order setting aside and vacating the order of December 20th, and entered a new order, as of the last date, which, after reciting that the defendants’ motion for a new trial was made upon a certain statement and certain affidavits describing them, and that it was opposed with certain affidavits on the part of the plaintiff, and that the intervenor had also moved for a new trial, upon a statement filed, ordered that the motion of the defendants be denied, and that of the intervenor be granted. From this judgment and these orders, the defendants appeal; and from the order granting the intervenor a new trial, the plaintiff appeals. ' Each of these appeals are prosecuted separately, but we have preferred to consider them together.

The claim of the intervenor is founded upon this state of facts: On the tenth day of April, 1858, Donner conveyed the undivided one-third of the premises to John Yontz; on the fifteenth day of *45August, 1856, one Cobb recovered a judgment in the District Court for Santa Clara County, for seven hundred and ninety-six dollars, against Yontz, a transcript of which was duly recorded in the County Recorder’s office of San Francisco, on the tenth day of December, 1858 ; an execution duly issued on said judgment on the fifteenth day of November, 1859, directed to the Sheriff of the County of San Francisco, which was levied on the interest of said Yontz on the premises, and the same was sold under the same execution on the twenty-eighth day of March, 1860, to one East-land, and a Sheriff’s deed was executed to him at the expiration of the time of redemption, and afterwards Eastland conveyed the same to Bradley, the intervenor. Mary Williams instituted a suit against said Yontz in the District Court of Santa Clara County, in which an attachment was issued and levied upon the premises upon the eighth day of January, 1859 ; a judgment was recovered in said action, on which an execution was issued under which all the interest of said Yontz in the premises was, on the ninth day of March, 1861, sold to the plaintiff and a deed therefor made in pursuance of said sale, after the expiration of the time for redemption. Under this state of facts the simple question is, which of these two parties, the intervenor or the plaintiff, has the better right and title to this interest of Yontz. The plaintiff contends that as the judgment of Cobb was not filed in the Recorder’s office of San Francisco until more than two years after it was rendered and docketed in Santa Clara County, and after the lien there had expired by limitation, the judgment was no lien upon any property in San Francisco. In this he is mistaken. The lien in such cases is clearly defined by the provisions of Sec. 207 of the Practice Act, which reads as follows: “A transcript of the original docket, certified by the Clerk, may be filed with the Recorder of any other county; and from the time of the filing, the judgment shall be a lien upon all the real property of the judgment debtor, not exempt from execution, in such county, owned by him at the time, or which he may afterwards acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied.” The statute is plain that the lien commences at the time of the filing of the transcript in the Recorder’s office, and continues for two years from that time, unless *46the judgment be satisfied before' that time expires. ISTo language could more clearly express that to be the meaning and intention of the Legislature, and we can perceive no injustice or hardship in it. The fact that a lien under the judgment has existed and expired in another county, can make no difference. The intention is to give a judgment creditor the right to acquire a lien in any county when and where he pleases, and then it gives Mm two years thereafter in which to enforce that lien. If he fails or neglects, or can find no property in one county on which to enforce it, that is no just cause why he should not exercise Ms right of enforcing it m another county where he may be able to find property of the judgment debtor.

But Sec. 209 provides than an execution to enforce this lien can only issue within five years after the date of the judgment, and if the judgment creditor suffers that.time to elapse without having enforced Ms lien, he cannot procure an execution, smce the repeal of Sec. 214, with wMch to enforce it. So, too, all right of action upon the judgment is barred by the seventeenth section of the Statute of Limitations, unless commenced withrn five years of the date of its rendition. Whether a lien can exist in any county after the expiration of five years from the date of the judgment by filing a transcript in the Recorder’s office just within the two years, is a question not properly before us in this case; but it is clear that if a lien could exist in such case, it would be merely nommal, unless an execution is issued within the five years with wMch to enforce it.

It follows from these views that "the interest of Yontz was vested in the intervenor, and there was therefore no error M granting Mm a new trial. The order granting him such new trial is therefore affirmed.

One ground of the motion for a new trial made by the defendants was misconduct of the jury, the sole evidence of wMch was the affidavits of a portion of the jurors. The respondents contend that at common law, jurors could not give evidence impeacMng their own verdict, and that the amendment of Sec. 193, allowing affidavits of jurors to be used for that purpose, does not apply to this case, because it was not passed until after the rendition of the judgment. It is unnecessary to examine what the rule upon tMs subject may *47have been at common law, as we consider that the statute governs this case. The judgment was rendered March 1st, 1862; the law amending Sec. 193 so as to allow misconduct on the part of the jury to be proved by the affidavits or any one or more of the jurors, was passed March 5th, and took effect immediately; and the motion for a new trial was not heard and submitted until some time in August, 1862. The statute related merely to the remedy, declaring the rule of evidence to govern the Courts in hearing and determining motions for new trials, founded upon alleged misconduct of the jury, and it clearly applies to all motions for new trials heard after it took effect. In no sense can it be said to affect any vested interest plaintiff had in his judgment. If that judgment was entered upon a verdict rendered under circumstances showing misconduct on the part of the jury, the law in existence at the time of the trial, verdict, and judgment, gave the defendants a right to have the judgment vacated and a new trial granted, and the Legislature had an undoubted right to prescribe the rule of evidence in motions for that purpose, whether the judgment was rendered before or after the passage of the law. The law relates to and affects the motion for a new trial, and not the judgment.

The affidavit of one of the jurors, Day, after stating generally what occurred in the jury room, in the way of discussions and votes, states that after a time a vote unanimous for the plaintiff was taken, but immediately thereafter Heller and Fortune, who are charged with the misconduct, recanted, and said their vote was not according to then convictions; and soon after the affiant saw Fortune approach Heller, and heard him propose to the latter that he would place a piece of money, and the latter should guess, heads or tails, and if he guessed right then then verdict should be for the plaintiff, or they would go with the others for the plaintiff; that Heller assented; that Fortune then placed a piece of money and covered it so that the former could not see it; he guessed, and they announced that he had guessed right, and they thereupon agreed to a verdict for the plaintiff, but both said it was still contrary to their convictions. The affidavit of Calkin, another juror, is substantially to the same effect. The plaintiff introduced the affidavits of several other jurors, in rebuttal, who corroborate the general *48statements of the occurrences in the jury room, but they state that they heard or saw nothing of this particular transaction between Fortune and Heller. The circumstances detailed by Day and Calkin show that it might well have occurred, and the other jurors have neither seen nor heard it, and we think the affidavits show with sufficient certainty that the transaction occurred substantially as stated by Day and Calkin. It is insisted, however, that the defendants should have procured the affidavits of the jurors guilty of the misconduct. It seems that one of the defendants applied to them for that purpose, and they refused. We know of no rule of law which requires these facts to he proved by the affidavits of the jurors charged with the misconduct.

That the conduct of these jurors was such as to vitiate the verdict there can be no doubt. The rule of law upon this subject is well settled. (1 Graham & Waterman on New Trials, 103; Wilson v. Berryman, 5 Cal. 44.) The Court therefore erred in denying the defendants’ motion for a new trial. Several other questions are raised by the parties, but as they do not relate to the merits of the case, and as their determination is not important to guide the future action of the Court below on the new trial, we do not deem it necessary to pass upon them.

The judgment, is reversed and a new trial ordered as to the defendants and the intervener.