Moore v. Hopkins

Foote, C. —This action was instituted to recover damages from the defendant, based upon an alleged breach of a promise of marriage made by him to the plaintiff. The jury returned a verdict for the plaintiff; from the judgment rendered thereon, and an order denying a new trial, the defendant has appealed.

Among other matters by way of defense, the defendant pleaded in abatement that another action was pending at the time this suit was brought, between the same parties, and for the same cause of action.

It is contended that the judgment of dismissal of a former action between the same parties, and for the same cause, was not admissible in evidence on the trial of the present cause, because, as is claimed, it is no answer to a plea in abatement of a pending action that a judgment of dismissal of the former action is entered after the trial of the second action has commenced, but before its conclusion. This contention, we think, is not well .founded. A dismissal of a prior action may be made and judgment entered at any time before the trial of the second action is completed. (Dyer v. Scalmanini, 69 Cal. 639; Hixon v. Schooley, 26 N. J. L. 461, 462; Averill v. Patterson, 10 N. Y. 501.)

The appellant further urges that the certificate of acknowledgment of a notary public to a release and receipt, such as is here involved, is conclusive as to the facts stated in the certificate, and they cannot be contradicted by the parol evidence of the plaintiff.

[272]The statute under which instruments of the kind under consideration are allowed to be acknowledged provides, among other things: “And the certificate of such acknowledgment or proof is prima facie evidence of the execution of the writing. ” (Code Civ. Proc., sec. 1948.)

“Prima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence.” (Code Civ. Proc., sec. 1833.)

“Conclusive or unanswerable evidence is that which■ the law does not permit to be contradicted.” (Code Civ. Proc., sec. 1837.)

“A presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect.” (Code Civ. Proc., sec. 1961.)

It therefore appears that the facts recited in the certificate attached to the release and receipt given by the plaintiff to the defendant or his agent, admitted in evidence, are only prima facie presumed to be true, and can be contradicted by any evidence, direct or indirect. Wherefore the instruction asked for by the defendant, viz.: “In this case, the plaintiff has offered no evidence other than her own which denies either the genuineness or the due execution of the receipt and release in evidence in this case, and I therefore instruct you that her evidence alone is not sufficient to overcome the certificate of acknowledgment of the notary public annexed to said release, and direct you to render a verdict in favor of the defendant,”—was properly refused by the court.