Rogers v. Cady

HarrisoN, J. In 1884 the plaintiff executed to one Stanton a mortgage upon certain lands which are situate ■ in Shasta county, but which were described in the mortgage as being in Lassen county, and the mortgage was recorded in Lassen county. In 1889 an action was'commenced in Lassen county by the defendant Russell, as administrator of Stanton, to foreclose the mortgage, and in the complaint in this action the property sought to be foreclosed was described as follows: “ The southeast quarter of northwest quarter, and lots 1 and 2 in section 31, township 37 north, range 6 east, Mount Diablo base and meridian, containing 116 XW acres, according to government surveys.” Service of. the summons was had upon the defendant in the action (plaintiff herein), and upon his failure to appear or answer the complaint his default was entered, and judgment rendered August 26, 1889, foreclosing the mortgage and directing a sale of the premises by the sheriff of Lassen county. An order of sale was issued upon this judgment October 5, 1892, by virtue of which the defendant Cady, as sheriff of Lassen county, was proceeding to sell the premises, when the plaintiff instituted the present action to enjoin him from making such sale. The case was tried by the court, and judgment rendered in favor of the plaintiff as prayed for. A motion for a new trial was made and denied, and the defendant has appealed from both the judgment and order. It is urged in support of the [290]appeal that by the judgment in the foreclosure suit it was determined that the mortgaged premises are situated in Lassen county, and that by reason of this judgment the plaintiff herein is estopped from showing that -said premises are not situated in that county.

The lands affected by the foreclosure proceedings are clearly and distinctly described in the complaint therein, and in the judgment by reference to the section and township of the government survey. The plaintiff was not required to introduce any evidence at the trial in support of his averment that these lands are situated in Shasta county. The county in which lands so described are situated is a matter within the judicial knowledge of the court, and is to be determined by it in the same manner as a legal proposition, and cannot be made an “issue” between the parties to be determined by the court in each case upon conflicting evidence presented in that case. For the purpose of informing itself, the court might inquire of others, or refer to books or documents, or any other source of information which it might deem authentic, but its action in this respect is not a part of the trial of issues in the action. Matters of which a court takes judicial knowledge are uniform and fixed, and do not depend upon uncertain testimony; and the failure or refusal of a trial court to take such notice does not prevent the appellate court from giving proper effect thereto. (See Hunter v. New York etc. R. R. Co., 116 N. Y. 615.)