21 Cal. 443 | Cal. | 1863
Field, C. J. and Cope, J. concurring.
This is an action of ejectment in which the plaintiff deraigns a title by a grant from the Pueblo of San Francisco and sundry mesne conveyances to one Sarah Boston, and by a deed from her and her husband, dated June 3d, 1854, to David Calderwood, and by sundry mesne conveyances from Calderwood to the plaintiff.
The defendants claim title under a deed from said Sarah Boston and her husband to one Wenborn, of a date prior to them deed to Calderwood. The deed to Wenborn is claimed to have been executed by one Strathern, under a power of attorney from Sarah Boston and her husband, but which being lost, an action was instituted by Wenborn against Sarah Boston and her husband to quiet his title, in which a judgment was rendered in favor of the plaintiff.
Whether this judgment was valid when pronounced and is still in force, are the only material questions in the case.
The objection urged to the validity of the judgment is, that the plaintiff, Wenborn, had died before the trial and verdict, but that the proceedings were continued and judgment entered in his name as plaintiff. It appears, however, that after the trial the Court made a judgment or order with this recital, to wit: “ This action having been continued, in consequence of the death of plaintiff, by
It is claimed by the plaintiff that the judgment pronounced in the action brought by Wenborn against Sarah Boston and her husband is not now in force, because it was vacated by an order of the Court by which it was rendered on the eleventh day of November, 1854. The order is in these words : “ In this Court the motion on the part of the defendants to open the default, and for leave to said defendants to answer, heretofore argued and submitted. The Court, after due deliberation thereon, orders that said motion be and the same is hereby granted on the payment of all costs.” Read literally, this order could have no application. There had been no default, and there was no occasion for leave to file an answer, as there was an answer on file. But, treating it as an order to set aside the judgment, it appears never to have taken effect. It was granted upon the condition of payment of all the costs. It does not appear nor is it claimed that any costs were ever paid. To obviate
But the Court in which the judgment was rendered has given its own interpretation of this order and this rule of practice. Upon application of the defendants in that action, an order was made on the ninth day of June, 1856, that the cause be put upon the calendar for trial, but this was also upon payment of costs. Two days afterwards this order was vacated by consent of both parties, and the “ cause ” put on the calendar of Saturday for argument. The argument mentioned was apparently of a motion to put the case on the trial calendar, upon the ground that the judgment had been set aside, since, on the twentieth of the same month, on deciding a motion to place the cause on the calendar for trial, the Court
The judgment must be affirmed.