Sharp v. Daugney
Before: Sawyer, Shaeter
Synopsis
Plea of Statute of Limitations.—A pica of the Statute of Limitations,- which states that the plaintiff was not seized or possessed of the land within five years before the commencement of the action, is fatally defective in not stating that neither plaintiff, his predecessor, or grantor, was thus possessed.
Idem.—Such plea should also state that the defendant has been for fire years before the commencement of the action in the adverse possession of the land.
Specification of Errors.—The appellate Court will take notice of errors appearing in the judgment roll, even if not named in the specification of errors in the statement.
Adverse Possession of Land.—When the Statute of Limitations is pleaded in ejectment, and it is admitted on the trial that the defendant has been for more than five years in possession, it will be presumed that his possession was in subordination to the legal title, unless it is either admitted or found as a fact that his possession was adverse.
Jurisdiction of Person.—If a judgment is rendered against a defendant by a Court of general jurisdiction, it will be presumed that the Court acquired jurisdiction of the person, unless the contrary appears affirmatively in the record.
Record of Suit.—¡Nothing is included in the record of a suit but the judgment roll.
Judgment Roll.—When the judgment is by default, the judgment roll consists of the summons, proof of service, complaint, with a memorandum indorsed thereon that the default of the defendant has been entered, and a copy of the judgment.
Idem.—When a summons is served by publication, the affidavits of publication and deposit in the Post Office constitute part of the judgment roll. . The order of publication and affidavit on which it is based, are not a part of the judgment roll or of proof of service.
Judgments.—When a judgment is attacked collaterally, the jurisdiction of the Court must be determined by the judgment roll alone.
Publication of Summons.—When the summons is served by publication, the Court does not fail to acquire jurisdiction because there is a discrepancy between the original summons and the summons as published, if in sense and meaning the original summons and the published version of it are identical.
Idem.—The affidavit of publication of summons may be made by the publisher and proprietor, instead of the printer, foreman, or principal clerk.
Dbfosit of Summons in Post Office,—The affidavit of deposit of summons in a Post Office need not state that the deposit was made by a white male citizen, or that the affiant is such citizen. It is sufficient if the deposit and affidavit are made by a human being.
Opinion — Shaeter
By the Court, Shaeter, J.: Ejectment for a lot in the City and County of San Francisco. Both parties claim under B. F. Coons—the plaintiff by virtue of a deed made to him by Gorham, assignee of Coons in insolvency, and the defendant under a Sheriff’s deed to him as purchaser at a foreclosure sale had in Daugney v. Coons. The trial was by the Court, and the appeal is from the judgment.
There are three grounds of appeal stated in the specification, but the only one that can be availed of by the appellant is the first, viz: that the Court erred in excluding the judgment roll in the foreclosure suit of Daugney v. Coons, the order of sale and the Sheriff’s deed to the defendant herein. There is another question, however, relating to the validity of the defence of the Statute of Limitations, pleaded in the action, of which, as the point is upon the judgment roll, we can take notice, notwithstanding it is not named in the specification.
First—As to the Statute of Limitations. The statement of the defence is as follows: “ And for a further answer they say that the plaintiff is not entitled to have or maintain this action because the plaintiff was not seized or possessed of the real estate described in said complaint within five years next before the commencement of this action.”
This statement is fatally defective. There is no averment that the plaintiffs’ predecessor or grantor was not possessed within five years, nor is an adverse possession alleged for any period of time anterior to the action. But aside from these substantial defects in the plea, the facts as found or agreed do not furnish the material for a defence under the statute. The Court has found simply that the defendants were in possession at the date of the action, and that they wrongfully withheld the same from the plaintiff. It was admitted by the plaintiff that the defendant had been in possession of the property through his agents ever since the 8th of December, 1855. But in the absence of any admission or finding to [512]the effect that the property was held adversely, it must be presumed, at least, in favor of the judgment, that this holding was in subordination to the legal title. (Wood’s Dig., p. 46, Sec. 9.
Second—The question of the correctness of the ruling of the Court, excluding the defendant’s evidence offered to show that he had a title from the common source, older and better than that of the plaintiff, depends altogether upon whether the Court had jurisdiction over the person of Coons, the defendant in the foreclosure suit.
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