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2. REMOVAL OF INTERPRETER OF CRIMINAL COURTS OF SAN FRANCISCO.-An interpreter, appointed for the criminal courts of the city and county of San Francisco, under the act of March 8, 1876, by the county judge, the mayor, and the police judge of said city and county, may be removed from office, and another interpreter appointed in his place, after the adoption of the present constitution, by the votes of the mayor and superior judge, although the police judge votes against such removal. People ex rel. Glover v. Becker (Cal.), IV, 303.

INTERVENTION.

See ADMIRALTY, 27.

INVENTION.

See PATENTS.

IRRIGATION.

See WATER RIGHTS.

JAIL GUARD.

1. GUARD OF JAIL-CAUSE OF ACTION-JUDGMENT.-A person who is employed on three several occasions as temporary guard of the county jail has three separate and distinct causes of action for the recovery of his salary, and a judgment obtained on one is no bar to a recovery on the others. Hughes v. Mendocino County (Cal.), III, 201.

JEOPARDY.

See KIDNAPING, 1.

JETTISON.

See ADMIRALTY, 20.

JOINT DEBTORS.

See CONSIDERATION, 3.

JOINT TENANTS.

See HUSBAND AND WIFE, 1.

JUDGE.

1. JUDGE OF THE COUNTY COURT WHO HAS BEEN OF COUNSEL FOR THE DEFENDANT in a former trial is disqualified from acting as judge in a subsequent trial of such case. It is his duty to certify such case up to the district court for further proceedings, either upon his own motion or that of a party desiring the same, without imposing as a condition to such removal that the party so desiring shall pay all the accrued costs. Connell v. Gavitt (Col.), I, 488.

2. LEGISLATURE MAY ENJOIN UPON A JUDGE THE PERFORMANCE OF JUDICIAL FUNCTIONS in matters outside of actions and proceedings in courts, and in such cases the provisions of the practice act in reference to appeals to the supreme court are inapplicable. Lyon County v. Esmeralda County (Nev.), I, 395.

JUDGMENT.

1. FINAL JUDGMENT, WHAT IS.-While proceedings are pending for a review of a judg ment, either on appeal or motion for a new trial, the litigation on the merits of the case between the parties is not ended; and until litigation on the merits is ended, there is no finality to the judgment in the sense of a final determination of the rights of the parties, although it may have become final for the purpose of an appeal from it. Gillmore v. American Central Ins. Co. (Cal.), I, 872.

2. A JUDGMENT ENTERED FOR THE PLAINTIFF IN ONE ACTION, in pursuance of a stipulation which authorized the entry of the same upon a final judgment for the plaintiff in another action, is premature, if entered pending a motion by the defendant in the latter action for a new trial, although entered more than one year after a judgment in the latter action, from which no appeal was taken. Id.

3. A JUDGMENT TO BE FINAL MUST SHOW BY THE ENTRY ON THE RECORD, in intelligible language, a determination of the rights of the parties to the action, what relief has been granted, if any, or that the defendant has been dismissed without day. A judgment which does not conform to such requirements will be held to be introductory merely. Dusing v. Nelson (Col.), II, 110.

4. JUDGMENT IN PROBATE COURT, WHAT IS.-Entries in the docket of the probate court that complaint was filed, summons issued and served, demurrer to complaint filed, and the entry of fees for overruling demurrer and entering default, with various entries of fees, do not constitute a judgment for either party. An appeal from such a judgment to the district court should be dismissed. `Gray, Sheriff, etc., v. Cederholm et als. (Idaho), II, 172.

5. JUDGMENT BY DEFAULT OUT OF TERM.-A judge of the district court has power to render judgment at his chambers, and out of term, in a case where the defendant has made default. Murne v. Schwabacher Bros. & Co. (Wash.), II, 799.

6. ENTRY OF JUDGMENT IN VACATION.-A judgment regularly rendered by a court in the transaction of its judicial business may be entered of record in vacation. Sieber v. Frick (Col.), II, 98.

7. JUDGMENT ON THE PLEADINGS IN AN ACTION FOR BREACH OF CONTRACT.-In an action to recover damages for breach of contract, where the answer admits the material allegations of the complaint, the plaintiff may move for judgment on the pleadings, or submit the question of damages to a jury. If he adopts the former course, without giving evidence of damages, the court can only award him nominal damages. Hadlan v. Ott et al. (Wash.), II, 565.

8. A PLAINTIFF IS NOT ENTITLED TO JUDGMENT UPON THE PLEADINGS when any of the material allegations of the complaint are denied by the answer. Reich v. Rebellion Silver Mining Co. et al. (Utah), II, 451.

9. JUDGMENT FOR THE PLAINTIFF ON THE PLEADINGS can not be rendered when the answer denies any of the material allegations of the complaint, or sets up new matter constituting a defense. Miles et al. v. McCallan et al. (Ariz.), II, 689.

10. JURISDICTION OVER THE PERSONS AS WELL AS SUBJECT-MATTER IN CONTROVERSY WILL ALWAYS BE PRESUMED in support of the judgments and orders of courts of general jurisdiction, when the same are questioned in collateral actions, and the record shows nothing to the contrary, although such jurisdiction does not affirmatively appear. Hughes v. Cummings (Col.), I, 608.

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11. VALIDITY OF AN ORDER MADE BY THE COUNTY JUDGE SETTING Aside a JUDGMENT OF DISMISSAL, and reinstating a cause on the docket of the county court, can not be questioned in a collateral action, although the record fails to show that the requisite notice was given to the judgment creditor or his assignee, if the judgment has been assigned. If erroneous, the error can only be corrected in a direct proceeding. Id. 12. THE JURISDICTION OF THE COUNTY COURT OVER ITS JUDGMENTS IS NOT LOST upon filing and recording a transcript of the judgment of the justice of the peace in the office of the clerk of the district court. The object of such filing and recording is merely for the creation of a lien on the real property of the judgment debtor. Id. 13. VALIDITY OF A JUDGMENT FOR DIVORCE MAY BE COLLATERALLY ATTACKED FOR WANT OF JURISDICTION Over the person of the defendant, when such fact affirinatively appears from the record, although such judgment recites that due service of process had been made. Israel v. Arthur (Col.), I, 286.

14. JUDGMENT CAN NOT BE RENDERED AGAINST ONE SUMMONED AS GARNISHEE until after judgment has been recovered in the action against the principal debtor. In proceedings against the garnishee he may show, either by the record or other competent evidence, that the judgment against the principal debtor was void for want of jurisdiction. Smith v. Montoya (N. M.), I, 152.

15. JURISDICTION OF A COURT OF GENERAL JURISDICTION WILL BE PRESUMED from the judgment itself, although the record does not recite the facts conferring jurisdiction; otherwise if the entire record discloses a want of jurisdiction. Id.

16. JURISDICTION OF COURTS, WHEN PRESUMED-ACTION ON JUDGMENT OF COURT OF GENERAL JURISDICTION.-The jurisdiction of courts of general jurisdiction is presumed, and the judgments and decrees of such courts are in all cases of at least prima facie validity. In pleading such judgment or decree as a cause of action or

as a defense, jurisdictional facts need not be stated. The same rules apply whether the judgment sued on is domestic, foreign, or of one of the sister states. Bruckman v. Taussig (Col.), IV, 670.

17. JUDGMENT OF SISTER STATE, ACTION ON-INTEREST ALLOWABLE.-Interest on a judgment of a sister state, as specified therein, is allowable in an action thereon in another state.

Id.

18. CONSENT JUDGMENT, APPEAL FROM-DISMISSAL.-An appeal from a judgment of the justices' court, entered by consent, may be dismissed by the superior court, on its own motion. Yeazell v. Superior Court etc. (Cal.), III, 522.

19. RECORD Of Court of SISTER STATE-AUTHENTICATION OF EVIDENCE.-In an action in this state, a transcript of a record of a court of a sister state is admissible in evideuce when the same is authenticated, in compliance with the federal laws, although the certificate of the clerk fails to state, as required by section 738 of the civil code, that such copy has been compared by him with the originals. Bloomfield v. Humason, Executrix, etc., et al. (Or.), III 614.

20. JUDGMENT OF SISTER STATE, IMPEACHMENT OF SURPRISE-FRAUD.-The defendant in an action on a judgment rendered against him in another state, after due service of process, and opportunity to be heard, can not impeach the validity of such judgment, for reasons which might have been given in defense in the action in which the judgment was rendered, in the absence of surprise or fraud on the part of the judgment creditor. Weir v. Vail (Cal.), III, 405.

21. A MOTION TO SET ASIDE A JUDGMENT IS A DIRECT and not a collateral attack. People etc. v. Mullan (Cal.), III, 300.

22. VOID JUDGMENT-SERVICE OF SUMMONS BY PUBLICATION-SETTING ASIDE JUDGMENT.-A judgment purporting to have been rendered after a service of summons by publication is void if no affidavit for, or order authorizing service by, publication was ever made. Such judgment should be set aside upon motion by the defendant or his assignee. Id.

23. JUDGMENT-LIEN-EQUITABLE INTEREST.-A judgment is not a lien upon a mere equitable interest of the judgment debtor in land. Bloomfield v. Humason (Or.), III, 614.

24. JUDGMENT, ADMISSIBILITY OF, IN EVIDENCE-PARTIES AND PRIVIES.-The general rule that judgments and decrees are inadmissible as evidence, except in suits between parties and privies thereto, does not apply to a case where such decree is offered by the plaintiffs as a connecting link in a chain of title under which he claims, adverse to that of the defendants. Wells v. Francis (Col.), III, 217. 25. A MOTION FOR A JUDGMENT, PURSUANT TO A STIPULATION, can not be considered a trial on the merits. If a party to such stipulation is entitled to judgment, it is upon the stipulation which has been entered as an order of the court, and not upon a trial of the cause. A motion for a new trial in such case is irregular, and should be dismissed. Id.

26. WHERE JUDGMENT HAS BEEN RECOVERED IN EXCESS OF THE AMOUNT claimed in the declaration, and such excess is capable of exact computation, the proper prac tice on appeal is to permit the judgment creditor to file a remission of the excess, and if such is done, to affirm the judgment as to the residue, otherwise to reverse the judgment and order a new trial. Orr v. Hopkins (N. M.), 1, 157. 27. COURTS HAVE NO AUTHORITY, UNDER SECTION 813 OF THE CODE OF CIVIL PROCEDURE, TO REVIVE A JUDGMENT rendered in favor of a partnership, and continue the same in the names of the surviving partners, and issue execution thereon in such names after more than six years have elapsed since the rendition of the judg ment. Boyd v. Platner (Mont.), I, 798.

28. AFTER JUDGMENT HAS BEEN RENDERED AGAINST A PRISONER AND HE HAS BEEN COMMITTED to jail thereunder, the court has no power, even during the same terin, to revise such judgment and increase the sentence imposed. State of Oregon v. Cannon (Or.), I, 836.

29. DECREE DIRECTING SALE OF STOCK SUBJECT TO INJUNCTION.-In an action to foreclose a lien upon certain mining property and certain stock, the sale of which is restrained by an existing injunction, there is no error in a decree which provides for the sale of the mining property, and if a deficiency then exists, that the plaintiff may, upon notice to the defendant, apply to the court for an order directing the sale of the stock, subject to the injunction, and the application of the proceeds of said sale to the payment of said deficiency, and that until such order no process issue for the sale of such stock. Allenberg v. Zellerbach (Cal.), I, 777.

30. WHERE A MAP OR OTHER PAPER IS REFERRED TO IN A JUDGMENT as a material part of it, it should be identified by the judgment and made a part of it. It

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Emeric v. Alvarado

should not be referred to as a paper recorded elsewhere. (Cal.), I, 708. 31. COPARTNERSHIP DEBT, MERGER OF, IN JUDGMENT AGAINST ONE PARTNER. - The plaintiff sued the defendant in error and several others on a partnership note. The defendant in error's co-defendants defaulted, and judgment was rendered against them. Afterward, and before the trial against the defendant in error, the plaintiff voluntarily amended his complaint so as to abandon the note and rest the action entirely upon the original indebtedness represented thereby. The trial was had more than two years after the default judgment was entered, and after several terms of the court had intervened. Held, that such default judgment was a bar to the continuance of the action against the defendant in error, and should not be set aside at the request of the plaintiff, and that the court had authority to render the same under section 146 of the code of civil procedure. Exchange Bank of Denver v. Ford (Col.), II, 624.

32. THE PAYMENT OF A JUDGMENT MAY OPERATE AS AN EQUITABLE ASSIGNMENT of the same to the party making the payment, although the judgment is satisfied of record. Equity, however, will not keep such judgment alive to the prejudice of subsequent bona fide purchasers of the premises on which it was a lien, who purchased the same when it appeared of record that the lien had been discharged, and who had no knowledge of any equities existing in favor of the person who discharged the judgment. Persons v. Shaeffer et al. (Cal.), II, 128.

33. PLAINTIFF IN AN ACTION OF EJECTMENT IS BOUND BY A FORMER JUDGMENT in an action between his grantor and the present defendant, wherein their respective titles to the land in controversy were put in issue. Eakin v. McCraith (Wash.), II, 785.

34. JUDGMENTS REGULARLY ENTERED ARE BEYOND THE COURT'S CONTROL after the expiration of the term during which they were rendered. Exchange Bank of Denver v. Ford (Col.), II, 624. 35. PRACTICE JUDGMENT ROLL.-Papers in a case which properly form no part of the judgment roll, and which would on motion have been stricken from it, may be considered on appeal as a part of the record by stipulation of parties. Grete v. Knott (Idaho), II, 169.

36. FACTS STATED IN THE RECITALS OF A JUDGMENT of a court of general jurisdiction are presumed to have been proved by competent evidence, but such evidence properly forms no part of the judgment roll. Id.

37. JUDGMENT AND FINDINGS IN FAVOR OF THE PLAINTIFF WILL BE PRESUMED TO BE SUPPORTED by the evidence when the same is not produced before the appellate court. Dusing v. Nelson (Col.), II, 110.

38. PERSONS NOT PARTIES TO ACTION, DECREE RESERVING RIGHTS OF.-The rights of persons not parties or privies to an equitable action can not be injuriously affected by the judgment therein. Equity, however, has power to protect by reservation or limitation in such decree the rights of persons interested, although they are not parties. Such power is conferred by section 16 of the code of civil procedure. Buck v. Webb et al. (Cal.), II, 397.

39. DECREE ENFORCING RESULTING TRUST, RIGHTS OF CREDITORS UNDER RESERVATION IN.-A decree in an action to enforce a secret resulting trust upon certain property of a corporation required the company to convey such property to its cestui que trust, and provided that the latter should take the same subject to the payment therefrom "of any and all just debts against the corporation which may be determined by due process of law to be preferred over the claim of the cestui que trust.” Held, that the effect of such provision was to create a specific lien on such property in favor of certain creditors of the company; that such lien would exist in favor of a creditor without notice of the existence of such secret trust, whose claim accrued prior to the rendition of such decree, and while the company was in possession and apparently the owner of the property; that a single action might be brought to establish such claim and to enforce the lien, and that in such action the corporation was a proper party. Id.

40. JUDGMENT, WHEN RELATES TO A FREEHOLD.-An appeal will not be dismissed on the ground that the judgment appealed from does not relate to a freehold, when it appears from the cross-bill filed by the appellants that the subject-matter of the litigation directly involved the title to several mines, and the findings on the issues presented by the cross-bill were against the appellants. Atkinson v. Tabor (Col.), II, 105.

41. A JUDGMENT, AS SUCH, CAN NOT BE LEVIED UPON AND SOLD UNDER EXECUTION. It must be levied upon as a debt, in the manner provided in subdivision 5, section 542, of the code of civil procedure. Id.

42. JUDGMENT BOOK AND ROLL-EVIDENCE OF JUDGMENT.-Any objection which might exist to the proof of a judgment, by means of the judgment book, is cured by the introduction of the judgment roll by the party objecting. Packard v. Johnson (Cal.), III, 763; Packard v. Moss (Cal.), III, 769.

43. SUFFICIENT EVIDENCE IN SUPPORT OF A JUDGMENT WILL BE PRESUMED to have been given, in the absence of an affirmative showing to the contrary. This principle is always applied in appeals upon the judgment roll alone. Kelly v. Kelly (Nev.), I, 143.

44. JUDGMENT OF THE LOWER COURT WILL BE REVERSED FOR FAILURE to find on a material issue. Southern Pacific R. R. Co. v. Bennett (Cal.), I, 140.

45. JUDGMENT WILL BE REVERSED WHEN THE TRIAL COURT FAILS TO FIND on all the material issues. Duane v. Neumann (Cal.), I, 565.

46. WHEN THERE IS EVIDENCE TO SUSTAIN THE JUDGMENT, the same will be affirmed. Tweed v. Lowe (Ariz.), I, 658.

47. WHEN THE EVIDENCE IS CONFLICTING, the JudgmENT WILL BE AFFIRMED. Rathgeb v. Dasso (Cal.), I, 566.

48. WHERE THERE IS A SUBSTANTIAL CONFLICT IN THE EVIDENCE, the judgment will not be reversed because the evidence does not sustain the findings. Burton v. Nichols (Cal.), I, 343.

49. JUDGMENT WILL BE REVERSED WHEN THERE IS NO EVIDENCE to support a material finding. Crites v. Wilkinson (Cal.), I, 565.

50. JUDGMENT WILL BE REVERSED WHEN THE EVIDENCE IS INSUFFICIENT to support the findings. Wilson v. Baker (Cal.), I, 551.

51. JUDGMENT OF THE LOWER COURT WILL be ReversedD WHERE THE PREPONDERANCE OF EVIDENCE is so great as to a particular finding that the appellate court has no hesitancy in declaring such finding against the evidence. Chamberlain v. Raymond (Utah), I, 522. Keating v. Edgar, Auditor etc.

52. JUDGMENT HELD SUPPORTED BY THE FINDINGS.

(Cal.), II, 572.

53. JUDGMENT DIRECTED TO BE ENTERED in accordance with the former opinion, re ported in 1 West Coast Rep. 264. Tucker, Sheriff etc., v. Parks, Assignee etc. (Col.), 11, 613.

54. JUDGMENT REVERSED for error of court below in construction of contract sued on. Martin v. Hill (Cal.), II, 895.

55. JUDGMENT REVERSED FOR ERROR IN THE FINDINGS, and for the rejection of material evidence. Millich v. Gutternich (Cal.), III, 372.

56. JUDGMENT AFFIRMED UPON A REVIEW OF THE EVIDENCE. Robinson v. Placerville etc. R. R. Co. (Cal.), III, 23.

57. JUDGMENT AFFIRMED ON THE AUTHORITY OF Swift v. Sheppard, 11 Pac. C. L. J. 560. Swift et al. v. Sheppard (Cal.), III, 194.

58. JUDGMENT AND ORDER AFFIRMED on authority of People v. Herbert, 10 Pac. C. L. J. 293, and People v. Raten, 11 Id. 366. People v. E. Bennett (Cal.), III, 48. 59. JUDGMENT OF THE LOWER COURT MODIFIED. Reynolds v. Weston et al. (Cal.), III, 356.

60. JUDGMENTS IN CROSS-ACTIONS-SET-OFF-EXECUTION.-Plaintiff recovered a pecuniary judgment against defendant. In a cross-action the latter afterwards recovered a smaller judgment against the plaintiff. An execution was issued on the lastnamed and levied on the first-named judgment, and the same sold thereunder. Subsequently the plaintiff moved for and obtained an execution under this judgment. Held, that the judgments being in cross-action, each could be set off against the other, the smaller being thereby satisfied, the latter to the extent of the smaller, and an execution issued for the balance; that such right of set-off could not be defeated by the holder of the smaller judgment levying execution upon the larger, and selling the same for a mere fraction of the amount due upon it, thereby depriv ing the holder thereof of his entire judgment, and leaving the smaller judgment to stand against him, almost unsatisfied. McBride v. Fallon (Cal.), III, 94. 61. ACTION ON JUDGMENT-DEFENSE OF NUL TIEL RECORD-DEMURRER.-A defense of nul tiel record to an action on a judgment is good, and a demurrer thereto should be overruled. Reynolds v. Robertson (Cal.), IV, 609.

62. FINDINGS PRIOR JUDGMENT-DECISION OF COURT.-Where a prior judgment is pleaded in bar of an action, a finding that on a certain day a court rendered "its decision" in favor of the defendants, is not a finding that a judgment was rendered. Gray v. Noon et al. (Cal.), IV, 588.

63. WHEN THE EVIDENCE IS CONFLICTING THE JUDGMENT OF THE LOWER COURT will not be disturbed. Oakland Bank of Savings v. Applegarth (Cal.), IV, 605.

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