Hind v. Uchida Trading Co., Ltd.

NOURSE, J.

Plaintiff sued on a complaint setting forth two causes of action: (1) An action for money paid to defendant under a mistake; and (2) a common count for money had and received. Judgment was given plaintiffs in the sum of $2,520 and defendant appeals. The judgment is attacked upon the ground that the evidence is insufficient to support the findings. Error is also assigned in the admission of certain evidence and in the denial of the motion for a new trial.

As to the sufficiency of the evidence, two assignments require consideration: (1) the finding on the question of respondents’ legal capacity to sue, and (2) the finding .that the money was inadvertently paid to appellant.

As to the first, the complaint alleged compliance with the provisions of sections 2466 and 2468 of the Civil Code. This was denied by the defendant. An affidavit showing a publication of the certificate with the county clerk’s filing mark thereon was received in evidence. No objection was made to the proof of publication and it may be taken for granted that this was a full compliance with the terms of the statute. It is, however, argued that the certificate itself is insufficient because it does not show an acknowledgment, and also that it was not shown to have been filed. The proof was that the original certificate was filed in the office of the county clerk of San Francisco in 1898 and that the original was destroyed in the fire of 1906.

[1]

It is true that the copy of the certificate which was offered in evi

[262]

deuce did not contain the acknowledgment by the parties. It was not necessary that it should do so for the purposes of publication as the acknowledgment is no part of the certificate and the certificate alone is required to be published under section 2468.

[2]

Proof might well have been offered that the original certificate was duly acknowledged, but in the absence of any evidence to the contrary the trial court was justified in invoking the presumption that the county clerk regularly performed his duty and that, therefore, he did not accept. for filing a certificate which was not acknowledged as required by the code.