Geary v. Simmons

39 Cal. 224 | Cal. | 1870

Sprague, J.,

delivered the opinion of the Court:

The judgment roll in the case of this plaintiff against Billings as administrator of the estate of Bezer Simmons, deceased, was competent and conclusive evidence against the plaintiff in this suit that such suit was commenced by him in August, 1851, against Frederick Billings, administrator of the estate of Bezer Simmons, deceased, to establish by judgment against said estate the identical claim upon which said suit is based; that Frederick Billings, as administrator of said estate, answered plaintiff’s complaint in that suit; and that the only issue presented by such pleadings, was as to the existence of an indebtedness of said estate to the plaintiff.

The material allegations of the complaint in that case must be taken as the solemn admissions of the plaintiff of the truth of the matters so alleged, as against the same plaintiff in this suit, which, though not regarded as conclusive against him as an estoppel, yet presumptively true; and, in the absence of any evidence on his part tending to establish that such allegations were made by mistake or under misapprehension of the real facts, binding and conclusive upon him, in this case, as established facts.

Among the facts so established, prima facie, by that record evidence, are the following : That Bezer Simmons died intestate between the eleventh day of August, 1850, and the first day of March, 1851; that on the first day of March, 1851, administration of the estate of said Bezer Simmons was granted to Frederick Billings; and letters of administration, whereby he was appointed administrator of the said estate, were duly issued to him by the Probate Court of the County of San Francisco; that after the appointment of the said Frederick Billings as administrator of said estate, to wit: on the seventh day of August, 1851, the plaintiff presented and exhibited his said claim, with the necessary vouchers, to the said Frederick Billings, as such administrator, for allowance, pursuant to the statute entitled “An Act to regulate the settlement of the estates of deceased persons;” and that said claim was rejected by said administrator. As these facts are affirmatively alleged in plaintiff’s complaint in that case, and were material allegations, they operate as evidence against him in this suit, by way of admission; and as, on the trial of this case, plaintiff did not attempt to rebut the presumption of the truth of these allegations, or by his own affidavit or other evidence endeavor to explain or show that these allegations were made under a mistake or misapprehension of the real facts, the force and legal effect of this judgment roll as evidence at the time of defendant’s motion for nonsuit, was to establish a complete and perfect bar to plaintiff’s cause of action.

The Court below was fully justified in granting defendant’s motion for nonsuit—for, if the Court had denied the motion and submitted the case to the jury upon the evidence, and the jury had found for the plaintiff, such verdict must have been set aside as not supported by, but contrary to, the evidence.

Judgment affirmed.

By Crockett, J.: I concur in affirming the judgment, on the ground that neither the complaint or the evidence exhibit any valid cause of action.

Rhodes, J., dissented.

Temple, J., expressed no opinion.