Lick v. Stockdale

18 Cal. 219 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

The appeal is taken from the judgment of the Fourth District Court, in an action of ejectment.

Several assignments of error are made:

1. That the judgment roll does .not show that the Court ever acquired jurisdiction over the person of Stockdale, one of the defendants. But the finding of the Court is, that the defendant was duly served with process ; and this recital is sufficient to show that the Court had jurisdiction. The judgment does not depend upon the performance of the clerical duty of making up the judgment roll, or the preserving of the papers. It is enough if the facts exist which are required to give jurisdiction to the Court; and the finding in this case is that they do exist, though the summons and return—the usual evidence—may have been lost or mislaid. It is argued that this finding of the Court is no proof of these facts of service on Stockdale, since no issue was joined between the plaintiff and Stockdale ; and the judgment here was a judgment by default entered against Stockdale. The entry seems to have been made while the Court had full possession and jurisdiction of the case; and it had the power of ordering judgment against Stockdale, as well as against the defendants who answered. The finding is matter of record; and is, therefore, record evidence of the facts recited. If there be any mistake in these recitals, it cannot be corrected in this way on appeal. The mere fact that the defendant did not appear or answer, did not deprive the Court of the power of ascertaining and finding the facts necessary or pertinent to the judgment ordered. We must regard this finding, therefore, as evidence of the fact it recites, and as sufficient to sustain the judgment.

2. The second point is answered in like manner.

3. This being an action against several defendants, occupying different portions of the property sued for, we see no objection to the entry of several judgments. This might have been done upon trial on separate findings or verdicts, and we see no objection to the same course on findings by the Court, or after default. If any objection exists on the score of increased costs, this might be ground for retaxing the costs or apportioning them, possibly; but we think no available error is shown—at all events, when the point is taken for the first time in this Court.

4. There is no merit in the last point. The defendants being in possession of the general tract, and not appearing on the trial, the plaintiff was not bound to ascertain for each the particular spot he trespassed upon. (See Vallejo v. Fay, 10 Cal. 377.) No damages seem to be assessed-.

Judgment affirmed.