Oaks v. Rodgers

48 Cal. 197 | Cal. | 1874

By the Court, Crockett, J.:

The plaintiff, a married woman and claiming to be a sole trader under the statute, brings this action, to recover the value of certain grain, alleged to have been wrongfully taken from her possession by the defendant. At the trial the plaintiff, in support of the allegation that she is a sole trader, offered in evidence a certified copy of the order of the District Court permitting her to become a sole trader; a copy of which, it appeared, had been duly filed in the Recorder’s office. The oath required by the statute to be administered to the applicant, before the order is entered, was indorsed on the recorded copy; but appears to have been administered by the Clerk. On offering the copy in evidence, the plaintiff proved by the oral testimony of two witnesses, apparently without objection, that the oath was administered to her by the Judge in open Court before the order was entered. The defendant objected to the admission of the copy in evidence, on the ground, first; that the order appeared to have been made by the Judge at Chambers, and not by the Court; and, second, that the Clerk had no authority to administer the oath, and it did not appear of record that the requisite oaths had been administered by the Court or Judge. The Court excluded the copy as evidence, and nonsuited the plaintiff; and thereupon a final judgment was entered for the defendant, from which the plaintiff appeals. We think the evidence was improperly excluded. It sufficiently appears that the order was entered by the Court, and not by the Judge at Chambers. It is entitled and filed in the Court, and is under its seal; and though, in drafting the order the Judge employs the phrase “it appearing to me,” and, in the testatum clause, says, “in witness whereof, I have hereunto set my hand,” this does not tend to prove that the order was not made and signed in open Court.

The second section of the statute, as amended in 1862 (Satutes 1862, p. 108,) provides that “before making the order, the Court or Judge shall administer to the applicant the following oath,” (giving the form of the oath;) and then provides that a “certified copy of said order, with the said oath indorsed thereon, shall be recorded in the office of the Recorder of the county.”

We think an oath administered by the Clerk in open Court, under its direction, is an oath administered by the “Court” in the. sense of the statute; and upon the facts appearing in this record, we will presume it -was so done.

Judgment reversed and cause remanded for a new trial. Remittitur forthwith.