Layne v. Johnson
Before: Allen
Synopsis
Appeal from Judgment—Lapse of Sixty Days—Sufficiency of Evidence not Reviewable.—Upon appeal from the judgment taken more than sixty days after the rendition of the judgment, the sufficiency of the evidence to justify the decision is not reviewable, such review being expressly forbidden by section 939 of the Code of Civil Procedure.
Id.—Appeal from Order Denying New Trial—Bill of Exceptions— Absence of Specifications of Insufficiency—Evidence not Reviewable.—Upon appeal from an order denying a new trial, the sufficiency of the evidence to support the finding cannot be reviewed, where there is nothing in the bill of exceptions specifying the particulars in which the evidence is insufficient, as required by section 648 of the Code of Civil Procedure.
Id.—Action by Administrator and Heirs to Quiet Title — Former Judgment in Favor of Cross-complainant’s Grantor—Evidence —Order of Appointment.—In an action by an administrator and heirs of a decedent to quiet title to land, where the defendant, cross-complainant, pleaded a former judgment of the same superior court quieting his title by publication against Bartels and the other defendants upon constructive service ordered by the court, it is held that the court properly excluded evidence of the appointment of the administrator, in order collaterally to assail the former judgment by showing that deceased was dead when the former suit was commenced. It is held that the exact date of Ms death was not essential to the order of appointment and was not concluded thereby.
Id.—Gross-complainant not Bound by Probate Proceeding—Effect of Appointment.-—-The cross-complainant, not being a party to the probate proceeding, could not be bound thereby. Giving to the order of appointment the broadest scope possible under the law, it could only be conclusive between parties and their privies in respect of the matters directly adjudged; and those matters could only be those things necessary and essential in conferring jurisdiction and establishing the authority of the court to make the order.
Id.—-Want of Jurisdiction not Appearing upon Judgment-roll—Collateral Attack not Allowed—Bights of Parties.—Where no want of jurisdiction appears upon the face of the judgment-roll offered in evidence, it cannot be collaterally assailed. A domestic judgment must be void upon its face to be the subject of collateral attack. Whatever may be the rights of the parties, in an action in equity to set aside the judgment, it is clear that a domestic judgment regular upon its face is not the subject of collateral attack.
ALLEN, P. J.
This is an action to quiet title brought by the administrator of the estate of J. H. A. Bartels; deceased, and his heirs at law, against Thomas J. Johnson, city of San Diego, a municipal corporation, and A. .G. Robinson. The complaint- is in the usual form, and alleges the appointment of Layne, as administrator of the estate of Bartels, on the 10th of November, 1905, by the superior court of San Diego county. The answer does not deny the allegation in reference to' the
[97]
appointment and qualification of Layne as administrator, but does deny that the other plaintiff's are the heirs at law of said Bartels, deceased. Defendant Johnson at the same time filed a cross-complaint, alleging that at the time of the commencement of the action, and for many years prior thereto, he was the owner in fee of the premises described in the complaint, and for many years had been in the rightful, lawful and peaceable possession thereof, and continued to hold the same until a few days prior to the commencement of the action, when plaintiffs unlawfully and wrongfully entered said premises and ousted said defendant. He prayed a decree that plaintiffs and cross-defendants have no title, interest or estate in the said premises. Upon the trial of the action the court found that at the commencement of the action, and for many years prior thereto, Johnson was and now is the owner in fee of the real property described; that for many years prior to the commencement of the action he was in the rightful, lawful and peaceable possession of said premises; that a few days prior to the commencement of the action plaintiffs and cross-defendants unlawfully and wrongfully entered into the possession of said premises and ousted defendant and cross-complainant therefrom; that at the time of the death of J. H. A. Bartels he was not the owner in fee nor in possession of the real property described, nor did he have any interest or estate therein; that plaintiffs other than Layne and cross-defendants were the heirs at law of Bartels; that neither they nor Layne, at the time of the commencement of the action, were the owners in fee of the said premises, nor did they have any interest therein. A decree was rendered accordingly in favor of defendant Johnson and against plaintiffs and cross-defendants. This judgment and decree was entered December 5, 1910. Notice of motion for a new trial was duly given, which Motion was by the court denied, and an appeal from the judgment and from the order denying the motion for a new trial was taken by plaintiffs and appellants on February 2, 1911.
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