124 Cal. 359 | Cal. | 1899
Action on a judgment alleged to have been duly given and made in favor of plaintiffs’ testator, in a suit hy him against Mitchell and Brown, in the justice’s court of the city and county of San Francisco. Such judgment was taken by default upon failure of said defendants to appear in the justice’s court. By his answer in the present case Brown raised the issue whether said judgment was duly given and made. Upon this issue plaintiffs introduced in evidence an abstract of
By section 911 of the Code of Civil Procedure, every justice is required to enter certain specified proceedings in his docket, and the next section (912) declares such entries to be prima facie evidence of the facts stated. The fault of plaintiffs’ proof is that these sections do not require the fact of service of summons to be entered in the docket, and hence do not impart to such entry, if made, the character of prima facie evidence. The provision of section 911, relating to the summons, is merely that its date and the time of its return shall be stated in the docket. It follows that plaintiff failed to sustain the burden of showing affirmatively that the justice’s court acquired jurisdiction to render the judgment sued.on. (Kane v. Desmond, 63 Cal. 464.) The judgment appealed from should be reversed, with directions to the court below to grant a new trial.
Chipman, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is reversed, with directions to the court below to grant a new trial. Garoutte, J., Van Dyke, J., Harrison, J.
