Clink v. Thurston

California Supreme Court Jul 1, 1873 No. No. 2,679Published

Before: Niles

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Holding. The court held that a prior judgment between the same parties regarding the same land constitutes a conclusive estoppel, even if not specially pleaded in the complaint, when the defendant's answer provides no opportunity for such a plea.

Issues

Whether a judgment roll is admissible in evidence without being signed by the judge or clerk.
Whether a former judgment must be specially pleaded in an ejectment action to be admissible as an estoppel.
Whether the premature introduction of evidence that acts as a conclusive estoppel constitutes reversible error.
Whether a prior judgment regarding the character of land and the validity of a purchase claim precludes re-litigation of those issues.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is not required that a judgment should be signed by the Judge or Clerk”

“Conceding the general rule to be as claimed by appellant, that estoppel by former judgment must be specially pleaded, it does not apply where no opportunity to plead the estoppel is given.”

“the Court did not err in enforcing against the defendant in this case the well settled rule that prohibits a party from agitating a second time a question, which has been once finally determined between the same parties”

Synopsis

Judge Need not Sign Judgment.—It is not required that a judgment should he signed by the Judge or Clerk.

Judgment Boll as Evidence.—When a judgment roll is an original record of the Court in which it is offered in evidence, it requires no exemplification.

Pleading Estoppel by Judgment.—The general rule that estoppel by a former judgment must be pleaded, does not apply where no opportunity to plead the estoppel is given.

Complaint in Ejectment.—An allegation of an estoppel by a former judgment has no place in a complaint in ejectment.

Evidence op Estoppel by Fobheb Judgment.—The plaintiff in ejectment may introduce in evidence a former judgment as an estoppel, without pleading it in his complaint.

Answer in Ejectment.—In ejectment the recital in the answer of the series of facts through which the defendant claims a right to the land, are mere averments of evidence, and amount to no more than a general denial.

Time op Proving an Estoppel by Judgment in Ejectment.—Although in ejectment it is irregular for the plaintiff in proving his case to introduce in evidence a judgment which is an estoppel, yet if the judgment is conclusive as an estoppel, thef defendant is not injured because the judgment was not reserved for rebutting testimony, and the judgment will not he disturbed.

When Judgment is an Estoppel.—If the validity of a certificate o'f purchase of land from the State, as swamp and overflowed, is put in issue and tried in an action in which the State is not a party, and if the question whether the land is swamp and overflowed is also put in issue and tried in the same action, and it is adjudged that the certificate is invalid, and that the land is not swamp and overflowed, the judgment estops the parties and their privies from afterwards proving that the land is swamp and overflowed, and therefore the property of the State.

Sfecial Vebdict in Equity Case.—Conceding that a special verdict of a jury in an equity case is only advisory, and may be disregarded by the Court, yet, if it is adopted by the Court, it has the conclusive effect of a final adjudication.

Plaintiff in Ejectment May Sell, Pending- Suit.—The transfer by the plaintiff in ejectment of his title to the demanded premises during the pendency of the action, does not affect his right to recover.

Evidence in Ejectment.—If the plaintiff in ejectment, pending the action conveys the demanded premises by a deed absolute on its face, and the defendant proves it on the trial, evidence by plaintiff in rebuttal that the deed was intended as a mortgage, does no injury to the defendant.

By the Court, Niles, J.: This was ejectment to secure possession of the southeast quarter of section twenty-six, township three north, range seven east, in the county of San Joaquin. The complaint averred plaintiff’s seizin and ownership in fee, and entry and ouster by the defendant, in the usual form..

The defendant, by his answer, in addition to a general denial, averred, among other things, that the land in controversy was swamp and overflowed land, and as such was the property of the State; that in October, 1865, one Bartlett purchased the land from the State in the manner pre[28]scribed by law, and received a certificate of purchase, which he afterward assigned to the defendant, who thereby became by law entitled to the possession.

At the trial the plaintiff, after giving in evidence a patent from the United States for the demanded premises, offered in evidence a judgment roll of the same District Court, in the case of Thurston v. Clink and others. The plaintiff objected to the introduction of the judgment roll, and the leading questions in the case are upon the propriety of the admission of this evidence, and its effect if admitted.

The suit in which the proffered judgment was rendered was brought by Thurston to quiet his title to the identical land which is the subject of controversy in this action. The averments of the complaint in regard to the character of the land, its purchase by Bartlett from the State, and the assignment of the certificate of purchase to Thurston, were substantially the same as those of his answer in the present action. It averred, in addition, a fraudulent procurement by Clink (then defendant) of a patent from the United States, and prayed that Clink be enjoined from using the patent as evidence of title against him, and for the purpose of dispossessing him of the premises, and that he be ordered to convey to him the title acquired by virtue of the patent, and for general relief.

Clink, by his answer, took issue upon all the material allegations of the complaint, denying that the land was swamp or overflowed land, and denying any title of the plaintiff, legal or equitable, therein, and averring the title to have been in the United States Government, from whom he purchased in good faith as a qualified pre-emptor, and received a patent. At the trial it was submitted to a jury, in the form of special issues, to determine if the land was swamp and overflowed within the meaning of the Arkansas Act; and they found substantially that the southwest quarter section in controversy was swamp and overflowed land, and that the remaining three quarters were not of that character. Subsequently the remaining issues under the • pleadings were tried by the Court, a jury having been waived, and findings were made which purported to be “in

Clink v. Thurston

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