Kinney v. Lewis

delivered the opinion of the court:

Elizabeth L. Kinney, the appellant, brought this suit for the recovery of real estate, and the judgment being for respondent, said Kinney appealed.

The appellant, to support her case, offered the judgment roll of the Third District Court, in the case of Kinney v. Lewis, a contest between the same parties, under the Townsite Act, wherein both plaintiff and defendant claimed the mayor’s deed to the certain piece of ground contested for, now in the action at bar. The respondent objected to the admission of the record, because neither the Probate Court nor the District Court on appeal from the Probate Court had jurisdiction; that this was a statutory action and the jurisdictional facts should appear on the record.

The statute gave the Probate Court jurisdiction for six months after public notice had been given by the mayor, as required by section 3, page 380 of the Compiled Laws of Utah, and by the same section it is further provided “ that when good cause is shown why such statement could not be filed within the time herein specified, the judge may extend the time not exceeding one year from the first publication of said notice.”

The statement of appellant in the present case was filed within the year. The question then arises, did the Probate Court extend the time beyond the first six months? That court took cognizance of the application of the said Kinney and of the application of the said Lewis, for the mayor’s deed. It heard the witnesses of the parties pro and eon., and after-wards decided against said Kinney and in favor of Lewis. It *516evidently assumed to take jurisdiction, notwithstanding the filing was after the first six months. This would seem to be conclusive that the Probate Court did extend the time; but it further appears that the statement of the appellant was endorsed by the words “ By permission, cause considered sufficient. — E. Smith, Probate Judge.” This clearly shows that the filing of the statement was by permission of the probate judge.

We do not see that any other construction can be given to the words “ By permission.” The filing after six months from the mayor’s notice was all the permission that could be asked of the probate judge. Therefore, taking this language and the action of the court in hearing and acting upon the case, it is clear that the filing of the appellant’s statement was by permission of the probate judge.

The language of that judge further is the “ cause considered sufficient.” This can'mean nothing else than that the permission granted to appellant to file her statement was so granted for “ cause considered sufficient.” It was incumbent upon the probate judge to decide whether the cause was sufficient or not, to authorize the filing. The matter was left to his discretion,' and based upon the fact whether there was good cause shown. The question of good cause being one to be found by the Probate Court, and it having passed upon it, there is at least a prima facie case as to jurisdiction in the Probate Court, made «out by appellant, and one that if not contradicted in direct • proceedings, cannot be questioned collaterally. Ereeman in his works on “Judgment” and on “Yoid Judicial Sales,” says, that, “ Whenever the jurisdiction of a court not of record, depends on a fact which it is required to ascertain and settle by its decision, such decision, if the court had jurisdiction of the parties, is conclusive, and not subject to any collateral attack.” Freeman’s Yoid Jud. Sales, § 4; Freeman on Judg. §523.

But on the appeal of said matters to the District Court, the finding made by the latter court puts the matter in still clearer *517light. It says that “ both parties have by application duly filed herein, in the Probate Court of Salt Lake County, claimed to be the legal owners,” etc In this proceeding, it would seem that the facts showing the “ good cause ” were proven in the District Court, as that court could onty make findings of facts proven, and the findings of that court are conclusive of the facts proven therein, when the evidence is not brought up.

But it is urged that the District Court had no jurisdiction, that the notice of appeal from the Probate Court to the District Court was not served. The findings of the District Court show “ that the notice of said appeal was given and served on the respondent, and that the appeal was perfected in all things required by law.” It was not necessary that the service of the notice should be endorsed on the notice. It may have been shown by oral testimony. As there was no evidence in the record offered showing the falsity of the findings, they are conclusive on this court as to the facts. Findings are a part of the judgment roll and impart verity. Civ. Pr. Act, § 203; C. L. p. 457; Freeman on Judg. §§ 76, 124-131; Hahn v. Kelley, 34 Cal. 392; Freeman on Void Sales, §8.

The mayor’s deed should have been admitted. It was not necessary that it should have been witnessed. C. L. (1166) § 1, pp. 379, 380.

"Whether it was sufficient to carry the title, was a subject of after consideration and not then before the court; but taken in connection with facts ft u id and decision made by the District Court in favor of the appellant in the contested case for the mayor’s deed, it was certainly competent and sufficient to show title in the appellant herein. The deed was prima faaie evidence itself, that every thing had been done that was necessary, to authorize the execution of the deed. Cofield v. McLelland, 16 Wall. 335.

The judgment of the court below is reversed and cause remanded.