Rosenberg v. Pimental

GRAY, C.

In this case the original plaintiff, Jacob Rosenberg, having died pending the appeal, Mary Rosenberg, executrix of his last will, was duly substituted as plaintiff and appellant herein.

The action is brought to quiet title and compel a conveyance to plaintiff from defendants of certain lands situated in Mono County. The defendants had judgment on a nonsuit granted on their motion on the trial of the case. The plaintiff appeals from the judgment and from an order denying a new trial.

The plaintiff, in his complaint, alleged title in himself, under an execution sale of the land in controversy had in an action wherein he obtained judgment against the defendant Pimental for $492.51. In his complaint he alleges that on the second day of October, 1894, the defendant Pimental was indebted to him in a certain sum, and then goes on to allege that suit was commenced on this indebtedness, etc. The date of the commencement of the said action, the date and amount of the judgment, the date of the execution and sale, and the date of the sheriff’s deed made in pursuance of said sale, are all set out in the complaint.

At the trial, plaintiff, as one step in the proof of his title,

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offered a certified copy of the judgment roll in the action, under which he claimed to have been the purchaser at the execution sale. In the complaint contained in the offered judgment roll, it was alleged that

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on the thirtieth day of October, 1894,” plaintiff loaned to the defendant, at .his request, $469.85, and it appeared that in the judgment interest was added to that sum, and judgment was rendered for the amount alleged in the complaint in this action. The date of the commencement of the action, the date as well as the amount of the judgment, as appeared from the judgment roll, all corresponded with the allegations of the complaint herein. To this judgment roll the defendants objected, on the ground that it appeared on its face that the action was brought for money loaned on October 30, 1894, and therefore the judgment roll is contradictory of the allegation in the complaint in this action, to the effect that