Leese v. Clark

By the Court,

Ejectment for the recovery of 'certain lots in the City of San Francisco. There were forty-one defendants in all, who answered severally. The jury rendered a general verdict for the defendants, and answered also to certain special issues. Plaintiff moved for judgment on the special findings. The motion was denied and judgment was entered for all of the defendants. On appeal to the Supreme Court the judgment was reversed, and the Court below was directed “ to enter judgment for the plaintiff upon the special findings, pursuant to the prayer of the complaint.” Amongst other things, the special findings disclosed the parts or portions of the premises sued for of which the defendants were respectively possessed. The remittitur having been sent down and filed, the plaintiff’s counsel, on the 29th of October, 1862, “ moved for judgment, in conformity with the mandate of the Supreme Court,” and thereupon a joint judgment was entered against eight of the forty-one defendants, Clark being one of the eight. Thereafter, and as we must assume, before the expiration of the term, and upon like “ application and motion of counsel for plaintiff for judgment in conformity with the mandate of the Supreme Court,” a second judgment was entered (containing several judgments in effect) against four only of the eight defendants named in the first judgment—Clark being one of the four omitted. It appears from the recitals in this second judgment, that it was entered upon a motion of the plaintiff to “ modify ” the first judgment; but all we know with regard to the nature of the modifications sought for is found in the particular recital above quoted.

*34The plaintiff, thereafter, moved for a several judgment against Clark. The motion was made upon the remittitur and papers on file, and came on to be heard April 4th, 1864. The motion was opposed by Clark on grounds set forth in the record. The files were used at the hearing and affidavits were introduced by both parties. The files and affidavits are left out of the transcript by stipulation. The Court decided in favor of the motion, and a several judgment was entered accordingly against Clark, May 2d, 1864. 1

The judgment recites, among other things, the appeal to the Supreme Court, the remittitur and the joint judgment against the eight defendants in the first instance, and states that it was entered “ in pursuance of the directions of the Supreme Courtand then follows the further statement that the first judgment “ was afterwards amended, on motion of the plaintiff, by striking out the name of Clark; and that judgment was thereupon rendered against-his co-defendants, leaving [out] the said defendant Clark. How, upon application of counsel for the plaintiff it is ordered, adjudged and decreed,” etc. The appeal is taken from this judgment against Clark and from the order by which the judgment was awarded.

The proposition of the appellant comes to this: That the record establishes a voluntary discontinuance or abandonment of the action as to Clark. The argument, generally stated, is, that the first judgment was substantially in conformity to the mandate; that the plaintiff moved to modify or amend the judgment by striking out the name of Clark and three others; and, furthermore, that he procured the judgment against the remaining four to be turned or resolved into several judgments against each of them, thereby, as is contended, manifesting an intention to abandon all further proceedings in the action as to Clark. The counsel of the respondent, however, does not assent to but controverts the facts upon which the reasoning proceeds.

First—The judgment first entered upon the remittitur, was not, in our opinion, in conformity to the mandate of the Supreme Court. In the first place, the judgment was entered *35against eight of the defendants only. .In the second place, it was entered against the eight jointly. The answers were several—the findings were several—and, in the absence of any stipulation of parties, the joint judgment was erroneous and any party prejudiced by the error could have appealed. (Winans v. Christy, 4 Cal. 70 ; McGarvey v. Little, 15 Cal. 31.) And the Supreme Court took that view of the law when it directed judgment to be entered upon the special findings. It does not appear that that form of judgment was departed from on stipulation, nor by reason of any interposition of the plaintiff. He did nothing, so far as the record shows, except move for judgment “in conformity with the mandate;” and the judgment that he got was very far from conforming to the mandate. Thereafter, according to the record, the plaintiff moved to “modify the judgment” by making a fresh “application and motion for judgihent in conformity with the mandate of the Supreme Court.” In view of this specification it is manifest the plaintiff was dissatisfied with the judgment as it stood on the ground that it met the mandate neither in form nor in substance. We gather from the specification that it was the fixed purpose of the appellant to stand upon the mandate as the test of his right and of the form in which the judicial vindication of it should be pronounced upon the record. But the judgment entered ministerially upon this motion was a wider departure from the requirements of the mandate than the one Which it was the purpose of the motion to supplant. The new judgment was several to be sure, but it was against four defendants only. And for this eccentricity the plaintiff is in no manner responsible upon the record. There are then no acts of discontinuance or abandonment by the plaintiff, but a persistent seeking on his part for the relief adjudged by the Supreme Court instead.

There is an apparent conflict between the recitals of the several judgment against Clark—the third in the series—and the recitals contained in the first and second judgments respectively. By the recitals of the first judgment it “ was entered upon the plaintiff’s motion for judgment in conformity to the *36mandate,” and the recitals of the second judgment are to the same effect. Each of these judgments may be said to state the facts of its own history, and the third judgment undertakes to recapitulate -them. It recites that the first judgment “ was entered in pursuance of the direction of the Supr'eme Court.” Whether it was so entered or not is a question of law and not a point of fact. We have the judgment and the mandate both before us, and hold that the first judgment is not in pursuance of the mandate, except it be in'a very limited sense. We consider that the Clerk in entering up the third judgment fell into a mistake of law in this respect. The third judgment recites also that the first judgment “was, on motion of the plaintiff, amended by striking, out the name of the said defendant Clark, and judgment was thereupon entered against his co-defendants, leaving out the said defendant Clark.”

These judgments are all in pari materia, and counsel have so treated them by bringing them all into the record, and by arguing upon each of them as illustrated by the others. The judgments were entered by the Clerk as a ministerial officer (McMillan v. Richards, 12 Cal. 46S); and if entered by j udicial direction, it comes to the same thing. The recital in a judgment that a party defendant against whom the judgment is entered appeared in the action is prima facie evidence only of the fact; and we consider the Clerk’s recital in the third judgment, that the first was amended by “ striking out Clark’s name on the plaintiff’s motion,” to be so far within the rule that it may at least be confronted -with the recital in the second judgment which gives a very different version of the character and object of the plaintiff’s motion. Again : at the time the third j udgment was applied for and ordered, the Court had nothing before it bearing upon the question in hand, of which we have any knowledge, except the second judgment and its recitals; and they constitute the basis, as we must presume, on which the several judgment against Clark was ordered. The recitals of the third judgment were not ordered by the Court—nor was it necessary to insert them. They were put in by the Clerk, and are nothing more than his exposition of *37the motion antedating the several judgment and fully set forth therein. The result is, that there are in our judgment no facts in the record which per se work a discontinuance of the action as to Clark, and none showing that the action was abandoned as to him by the plaintiff. The plaintiff had a several verdict against Clark. The Supreme Court had adjudged the plaintiff was entitled to a separate judgment, and the plaintiff, after two unsuccessful applications, secured the entry of such judgment for the first time, on the 2d of May, 1864. We cannot adjudge that the plaintiff had lost his right to have judgment entered on the grounds stated except upon the deal-est demonstration, and the whole force of the record is the other way.

Second—There is another view of the matter which may be very briefly stated. If there is any state of facts under which the entry of the third judgment can be vindicated, we. must presume that that state of facts existed at the time the entry was ordered, and that the order was made on the ground of them. The files and affidavits used at the hearing are not inserted in the transcript. For anything we can know to the contrary, there may have been a stipulation among the files, or one may have been brought forward by affidavit, fully accounting for all the phenomena put as the basis of the argument submitted for the appellant—and conserving also the plaintiff’s right to a several judgment against Clark—and by direct expression.

The order and judgment are affirmed.