McCallum v. Stull

STURTEVANT, J.

The plaintiff commenced an action against the defendants to foreclose a judgment lien. Judgment went for the plaintiff and the defendant G. L. Stull

[573]

has appealed under section 953a of the Code of Civil Procedure. The record presents but one question, and that is the question of procedure. Before proceeding further it is necessary to state the facts concerning the history of this litigation.

Prior to the ninth day of July, 1915, G. L. Stull, the appellant, commenced an action against P. McCallum et al., to quiet title. Thereafter the defendant in that action appeared and answered and at the same time filed a cross-complaint. Later the plaintiff answered the cross-complaint. Thereafter the cause as made by the pleadings came on for trial, and on May 11 such proceedings were had that the cause was ordered dismissed. An entry was made by the courtroom clerk in his minutes, and an entry was made in the register of actions, “1916 May 11. Cause dismissed.” Thereafter no proceedings were had until February 19, 1919. On that date findings of fact and conclusions of law were duly signed and filed and on the same date a judgment in due form was also signed and filed and the judgment-roll was made up. When the instant case came on for trial the plaintiff produced the judgment-roll and evidence showing that no part of the judgment had been paid, and thereupon the plaintiff rested. The defendant thereupon offered in evidence the minute entry showing an order of dismissal and also the register of actions showing the order of dismissal, which is quoted in full above. Both offers on the part of the defendant were refused, and the defendant claims such refusals to be errors. It is patent that the appellant was contending in the trial court that the first action was dismissed and that therefore there was no judgment to be foreclosed. If such was the contention of the appellant, then the appellant should have produced a judgment-roll showing that a judgment of dismissal was entered and that such judgment was within the jurisdiction of the court entering it.

(Harper

v.

Rowe,

53 Cal. 233;