Bostic v. Love

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

Bostic, the plaintiff below, having, as he alleges, paid a sum of money as surety on an appeal bond or undertaking for Mrs. Love, (late Bennett) brings this suit to recover of the female defendant from her separate estate this amount. The original debt, from judgment on which the appeal was taken, was the separate debt of Mrs. Love, and contracted while she was a femme sole.

Plaintiff recovered judgment, and the defendant appeals.

The points made are: First, That no demand is shown against Mrs. Love. This assignment rests on the fact that the paper sued on in the first case is not a promissory note but only an agreement, and no consideration is expressed in it or averred in the complaint. But the answer is, that an appeal was taken in the name of Mrs. Love to the Supreme Court, and the judgment below — which was by default— affirmed. This judgment is conclusive so long as it stands; it cannot be attacked collaterally upon the ground that the parties to it did not prosecute the appeal; for the effect of this would be to deny verity to all records. If it could be set aside at all, it must be by affirmative and direct proceeding, impeaching the judgment for fraud in its procurement. The judgment of the Supreme Court, affirming that of the District Court, then, is conclusive evidence of the facts it asserts.

Nor is it true that the equity rule, requiring two witnesses to overturn an answer, prevails in our system. The answer is not evidence [73]for the defendant, but only pleading. This we have held in several cases. (See Cordier v. Schloss, 12 Cal. 143.)

This disposes of the first assignment.

The second is not good. It is that there is no proof that the plaintiff signed the appeal bond at the request of defendant. We doubt if any proof of this request be required. When appeal is taken by a party, and as a condition to give it effect, a bond or undertaking, with or by sureties is annexed, we suppose, as the undertaking is executed for the benefit of the appellant, the presumption of law is that it is done at her request. But at all events, very slight proof would be required of such request, and this is furnished by the witness Rush.

It is not necessary to consider the testimony of the witness Campbell. There was proof enough without it; and this is a case tried by the Court without a jury.