Jolley v. Foltz, 34 Cal. 321

Jolley v. Foltz

34 Cal. 321 | Cal. | 1867

By the Court, Sawyer, J.:

The proceedings of the Justice’s Court in the case of McCarter v. Jolley, when first offered in evidence, were properly ruled out, because it did not appear that the Justice had jurisdiction of the person of the defendant. A Justice’s Court is not a Court of record; it is an inferior Court, and its jurisdiction must be shown affirmatively by a party relying upon, or claiming any right under its judgments. Section five hundred thirty-five of the Practice Act provides, that “¡No person shall be held to answer.to any summons issued against him from a Justice’s Court in a civil action, in any township or city other than the one in which he shall reside, except,” etc. It nowhere appears in the docket, or other papers in the case offered in evidence, that the defendant was a resident of the township in which the suit was brought, or that he was within any of the exceptions. So far as the written evidence of the proceedings offered is concerned, the case is within the decision in Lowe v. Alexander, 15 Cal. 300. But upon the ruling out of the record of the proceedings in the Justice’s Court, the defendant offered to supply the defect in the record evidence by showing by testimony aliunde that at the time of the institution of the suit, and service of the summons, the defendant in the suit, H. B. Jolley, was a resident of the township in which the suit was brought, and the judgment rendered.

On objection by the plaintiff, the evidence was excluded, and the defendant excepted. The fact of residence is the jurisdictional fact, and this is the fact offered to be proved by parol. The Practice Act requires the fact to exist, but it nowhere requires that its existence shall be recorded in the docket of the Justice, or be made to appear in the written evidence of the proceedings. Section six hundred four prescribes what shall be entered in the docket of the Justice, and section six hundred five provides, that “ Such entries in *327a Justice’s docket, or a transcript thereof, certified by the Justice or his successor in office, shall be primary evidence to prove the facts so stated therein.” The fact in question is not enumerated, and it is not provided in what manner other facts than “ such entries in the Justice’s docket * * * so stated therein” shall be proved or made to appear. If it be conceded that the facts required to be entered must be proved by the docket, it does not follow that other facts, not required to be so entered, shall not be proved by other evidence. The evidence offered in no respect contradicts the docket, but, on the contrary, it is entirely consistent with it, and supports the judgment.

We can perceive no good reason why the evidence should not be admitted. Although not directly in point, the inference from the following cases supports this view: (Hamilton v. Wright, 4 Hawkes, 283; Ferrell v. Underwood, 2 Dev. Law R. 114; Dyson v. Wood, 3 B. & C. 451; Westbrook v. Douglass, 21 Barb. 603; Gardiner v. Buckbee, 3 Cow. 127; Doby v. Brown, 1 Comst. 71, 75.) In Posson v. Brown, 11 Johns. 166; Boomer v. Laine, 10 Wend. 527; Dygert v. Coppernoll, 13 Johns. 210; McLean v. Hugarin, 13 Johns. 184; and Brintnall v. Foster, 7 Wend. 105, where a statute required certain parts of the proceedings before a Justice to be entered in the docket, or where the fact to be proved appeared in the files, it was held that parol evidence could not be given of the matter so entered, or appearing in the files, and still existing, because it was not the best evidence, and that such entries and writings could not be contradicted by parol evidence.

In the first case the Court say : “ Though the proceedings and judgment before a Justice may not be technically a record, yet the material parts are in writing and ought to be produced. Farol evidence of such proceedings is not the highest or best evidence in the power of the party, and ought not therefore to be admitted. The magistrate should at least produce the written evidence of his proceedings as far as the same is in his possession or power.” (11 Johns. *328166.) The cases are not put upon the ground that the matters sought to be shown are in no case proper subjects for parol proof, but upon the ground that being in writing, or required to be in writing, the writings themselves were the best evidence. This is but the ordinary rule respecting primary and secondary evidence. The necessary inference is, that those facts not in writing, or required to be in writing, or in fact entered in the docket, may be proved by parol. This Court intimated as much in Blair v. Hamilton, 32 Cal. 54. Some of the language used in Lowe v. Alexander, before cited, is broad enough to indicate a different view, but it was not called for by the facts and was unnecessary to the decision of the case.

There really does not seem to be any orderly mode in the ordinary proceedings in a Justice’s Court of expressly stating the fact of the residence of the defendant in the township, and, in practice, it probably is rarely stated in express terms. If stated at all, the place would naturally he in the complaint. But in a large majority of cases, no complaint in writing is required to be filed, and in this case no complaint, other than a copy of the note, was filed. It might be stated in the docket, and, although somewhat awkward, it would be well, perhaps, to so state it; hut the statute does not expressly require it, and we doubt whether such has been the practice. In Fagg v. Clements, 16 Cal. 392, the return of the officer showed a personal service in the township in which the suit was brought, and this was held prima facie to show a residence. Residence could only be inferred from the fact of service in the township. There was no direct statement of the fact of residence in the township in the case now before the Court. As there was, in fact, no written evidence in the docket or files of the Justice’s Court upon the question of residence of the defendant, and no entry upon the subject is required to be made by the statute, and as there is nothing in the parol evidence offered inconsistent with the record of the Justice, we think it was improperly excluded.

*329It is claimed by the respondent, that, conceding this ruling to be erroneous, there was still no injury, for the reason that there was no evidence of fraudulent conveyance of the property in question from the defendant in that action to the plaintiff in this. Under the ruling of the Court, excluding the evidence before referred to, the fraud, if proved, would not have heen available to the appellant. His right to attack the conveyance as fraudulent depended upon the proceedings excluded. Had they been admitted, we cannot tell what appellant’s evidence in respect to a fraudulent conveyance might have been. The entire basis of his defense and the foundation for further evidence was excluded.

The judgment and order denying a new trial must be reversed and a new trial had, and it is so ordered.