101 Cal. 312 | Cal. | 1894
This is an action of claim and delivery, to recover possession of certain liquors sold and delivered by plaintiff to defendant Schnabel, and which, it is claimed, were procured by fraudulent representations of defendant.
The cause was tried by the court, written findings filed, and judgment ordered in favor of defendant:
1. For the return of the property.
2. For the sum of seven hundred and twenty-one dollars and seventy-five cents, the value thereof, in case a return cannot be had.
Plaintiff moved for a new trial, and, his motion being overruled, appeals from the order denying such new trial.
The court found, among other things, that on the twenty-eighth day of December, 1889, the sheriff of Los Angeles county, under and by virtue of an affidavit, undertaking, etc., filed by direction of the plaintiff, took possession of the property, and thereafter and on
Appellant contends that there was no evidence in support of these findings.
There was on file among the papers in the case the affidavit and undertaking on behalf of plaintiff for a return of the property, describing it as in the complaint; the return of the sheriff duly certified, showing the taking of the property from defendant, and describing it precisely as in the complaint and affidavit, and the statement that he delivered it to the plaintiff as found by the court. These papers were not formally offered in evidence at the trial, but, being on file as papers in the case, were used by the court in making its findings.
Treated as evidence, they showed conclusively the delivery of the property to plaintiff, and the question arises, should a new trial be granted for this cause?
The Code of Civil Procedure, section 520, requires the sheriff to file the affidavit, notice, and undertaking, with his proceedings thereon, with the clerk of the court in which the action is pending.
The answer demanded a return" of the property, or a recovery of its value, and damages.
I am of opinion the court was at liberty to take judicial notice of the previous proceedings had in the cause, the evidence of which, under the official signature of the sheriff, was as provided by the code on file in the case.
Courts will take judicial notice of their records and officers. The case of Blum v. Stein, 68 Tex. 608, involved a like principle. The plaintiffs had brought an action, and wrongfully sued out a writ of attachment under which property of the defendant had been levied upon, sold, and the proceeds paid into court. Defendant had answered, averring the wrongful issue of the attachment, and asking damages on account thereof,
“The court knew judicially that the money was-in court,” and, after specifying what should have been done with it, added: “To have authorized the court to do this it was not necessary that the evidence rejected should have been introduced.”
In State v. Bowen, 16 Kan. 475, it was held that the court will take judicial notice of all prior proceedings in a case, and hence that on a plea in bar of “ once in jeopardy” it was unnecessary to introduce evidence of a former trial, and the verdict rendered on such trial.
In every case where a demurrer is interposed to a complaint upon the ground that the cause of action is barred by the statute of limitations, the court must and does, for the purpose of passing upon the question thus presented, take judicial notice of the date at which the action is commenced.
And we think it may be said generally that, when necessary for the administration of justice in a given case, the court will take such notice of all previous and undisputed proceedings therein as appear of record, certified or authenticated as required by law, and required by law to be on file or of record in the cause.
The findings of the court show that defendant is the owner of, and entitled to, the possession of the property in dispute. Plaintiff introduced in evidence the proceedings in insolvency of defendant, which showed his claim of right to the property, and that it was taken from him by the sheriff, and was held by the latter for the plaintiff. Its value was averred in the complaint, and not denied by the answer, hence the only question was as to the possession by plaintiff. To prove this the return of the sheriff was proper evidence, and, that return being of record, the court might well avail itself of it in determining the fact; or, if the fact had not been found, in determining the right of defendant, as a
The findings of fact cover all the material issues made in the case. The finding “ that plaintiff did not rescind said sales, or either of them,” was one of fact, and not a conclusion of law, as contended by appellant. It was the ultimate fact, of which the other facts mentioned in the complaint were but evidentiary. (See Levins v. Rovegno, 71 Cal. 273, where the distinction between conclusions of law and deductions of fact is discussed at some length.)
This fact being found, and manifestly all the others become unimportant, for the reason that if plaintiff failed to rescind the contract he was not in a position to recover the property sold in an action for claim and delivery, even had the court found the defendant guilty of fraud.
The order appealed from should be affirmed.
Haynes, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the -order appealed from is affirmed.
McFarland, J., De Haven, J., Fitzgerald, J.
