66 P. 572 | Cal. | 1901
A judgment was rendered by the superior court in the above-entitled cause, May 3, 1893, declaring the defendant to be the owner in fee and entitled to the immediate possession of certain real property in San Francisco, and that he recover possession of the same from the plaintiffs, and each of them. A new trial was afterwards granted by said court, and upon an appeal therefrom to this court, that order was reversed, and aremittitur issued to the superior court, June 27, 1896. (Galvinv. Palmer,
The judgment of May 3d must be regarded as the final and only judgment in the action. If two judgments have been entered in a cause, and the record — the judgment roll — is silent in reference to the reason therefor, the latter in point of time must be deemed the true and final judgment in the case. (Paige v.Roeding,
There is nothing in the judgment record herein tending to show any error or irregularity on the part of the court in *429
causing the judgment of May 3d to be entered, and the silence of the record demands the presumption that it was properly entered. Its verity is to be tested by its own record, and cannot be impeached by affidavits, or by any matter outside of its record. "Purporting to be a judgment of the court, and found regularly entered in its records, the presumption is that it was entered in pursuance of an order of the court." (Drake v. Duvenick,
The minute order of the court found in the transcript herein, and which is apparently the basis for entering the second judgment, is no part of the judgment roll. (Code Civ. Proc., sec. 670; Kaufman v. Shain,
Whether a cross-complaint was a proper pleading in the former action is not open to consideration upon the present appeal. That question could have been determined only by an appeal from the judgment in favor of the cross-complainant.
Whatever stay of proceedings was consequent upon the writ of error issued from the supreme court of the United States fell with the dismissal of that writ and the filing of the mandate thereon. It was not necessary that there should have been a specific order vacating the stay caused by the issuance of the writ.
The order is affirmed.
Van Dyke, J., and Garoutte, J., concurred.