Darlington v. Butler

California Court of Appeal Apr 18, 1906 No. Civ. No. 194.Published

Before: Chipman

AI Brief

AI-generated · verify before citing

Holding. The court held that the judgment of dismissal entered on January 3, 1905, was the final judgment in the case, rendering the subsequent January 5th judgment unauthorized and ineffective. Consequently, the surveyor general properly referred the contest between the plaintiff and defendant to the court, precluding the intervener's later application.

Issues

Whether the judgment of January 3, 1905, constituted the final judgment of dismissal.
Whether the surveyor general had the authority to refer the contest to the court based on the January 3rd judgment.
Whether the intervener had standing to challenge the judgment and order.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court pronounced its judgment of dismissal, or, in other words, rendered its judgment of dismissal on January 3d, when it so declared in open court and directed the clerk to enter the order.”

“The order entered in the minute-book was in effect the final judgment of dismissal.”

“After the reference of the contest between Darlington and Butler the surveyor general had no power or right to receive the application of another person to purchase the land involved in the contest”

Synopsis

APPEAL from a judgment of the Superior Court of El Dorado County, and from an order denying a new trial. N. D. Arnot, Judge.

The facts are stated in the opinion of the court.

CHIPMAN, P. J.

This is an action to determine the respective rights of the parties to certain school land situated in El Dorado county. Plaintiff had judgment from which and from the order denying his motion for a new trial intervener Kohn appeals.

The record presents the following facts: In 1888, defendant Butler filed her application in the state land office to purchase the land; thereafter one Graham filed therein a similar application, and on demand and protest of Graham the surveyor general referred the conflicting claims of Graham and Butler to the superior court for adjudication,- on May 4, 1889, a complaint was filed by Graham in said court in the action entitled

Graham

Butler,

and summons issued, but no return was made thereon; on May 7,1903, appellant, intervener Kohn, “presented his application to purchase and protest to the surveyor general, who refused to file the same on the ground that the matter had been proferted to the superior court of El Dorado county, and until judgment was had they (sic) had no jurisdiction to receive the same”; on May 22, 1903, Kohn, by leave of court, filed his complaint in intervention, and an alias summons issued thereon, and on August 19, 1904, “was duly certified and returned” to the court, and on the same day Graham filed his answer to said complaint in intervention, “disclaiming any interest in the land therein described or in the cause of action; and the default of said Sarah Butler for not appearing in answer to said summons was duly entered”; on July 16, 1903, Darlington, plaintiff herein, filed

[450]

his complaint in intervention, in which he alleged that he had made application to purchase the land from the state on April 11, 1903, which presumably was refused as Kohn’s had been; on January 3, 1905, the court “dismissed the proceedings of

Graham

Butler,

on motion of said intervener Darlington, upon the ground that summons in said action had not been served and return thereon made within three years after the commencement of said action.” It appears from a statement made by the judge, Honorable N. D. Arnot, presiding in the case, as follows: “It was the practice of the presiding judge in this case ... to announce his decision to the clerk and require the clerk to make an entry in the minute-book; and that has been his practice since he became judge of the superior court of El Dorado county. . . . When the judge presiding made his order in the case of

Darlington v. Butler

AI Brief

Synopsis

CHIPMAN, P. J.

More from California Court of Appeal

Related research

AI Brief