« SebelumnyaLanjutkan »
"In no case is a judgment effectual for any purpose until so entered," a compliance with these provisions must substantially appear in the
exemplification of the record of the Vermont judgment. (Id.) 3. SUFFICIENT PROOF OF ENTRY OF VERMONT JUDGMENT—"ORIGINAL
RECORD”-PRESUMPTIONS.—Where the exemplification of the Vermont judgment by the clerk of the court shows that “having inspected the records and proceedings” in his office there is found “a certain original record of a judgment," a full copy of which is set forth and attested "a true record,” in view of the presumption in subdivision 15 of section 1963 of the Code of Civil Procedure that "official duty has been regularly performed,” it must also be presumed that the "original record” of the judgment was in a “judgmentbook,” since in a legal sense there could be no "original record of a
judgment” unless it was so entered. (10.) 4. ACTION UPON FOREIGN JUDGMENT-DEFICIENCY UPON FORECLOSURE OF
MORTGAGE-DEFENSE OF FRAUD—In an action in this state upon a judgment for an alleged deficiency upon the foreclosure of a mortgage rendered in the court of another state, the defendants may show that the indorsement of their signatures upon the original summons in the foreign action was procured by means of fraudulent representations, and upon the representation that it was procured in lieu of a publication of summons, to prevent the necessity of such publication, and that it was a substituted service, and that it was agreed that no personal judgment should be entered against
them. (Fox v. Mick, 599.) 5. RIGHT TO ASSAIL FOREIGN JUDGMENT TO DEFEAT JURISDICTION.
When a judgment recovered in one state is pleaded or presented in the courts of another state, whether as a cause of action or a defense, or as evidence, the party sought to be bound by it may always impeach its validity, and escape its effect by showing that the court which rendered it had no jurisdiction over the parties or the subject matter of the action, and its jurisdiction may be con.
troverted by extraneous evidence. (Id.) 6. SUPPORT OF FINDING IN FAVOR OF DEFENDANTS.-It is held that
the finding in favor of defendants is supported by the evidence that it was understood between the parties that the sole and only purpose of signing the indorsement was to give the court such juris. diction only as would follow due publication of the summons, and enable plaintiff to foreclose his mortgage without the delay and expense of publication, and that plaintiff told defendants that such service and appearance was in effect substituted service, and that
no personal judgment would be taken against them therein. (Id.) 7. STIPULATED RIGHT OF TRIAL COURT TO CONSIDER LAWS OF COLO
RADO-SUPPORT OF ORDER DENYING NEW TRIAL.- Where the exemplification of the record shows a Colorado judgment, and it was
stipulated that the court might take judicial notice of the laws of Colorado, it cannot be said that the court erred in denying a new trial in the absence of any proof of such laws appearing in the record. It must be presumed that the trial court, pursuant to the stipulation, found some Colora do law which would render the Colorado judgment ineffective, and justify the order denying a new trial. The validity of a judgment is governed by the laws of the
state where it was rendered. (Id.) 8. ORDER VACATING DEFAULT JUDGMENT-APPEAL-NOTICE OF MOTION TO
VACATE–GROUND-CONSTRUCTION OF AFFIDAVIT AND MOTION_PREMATURE DEFAULT.-Upon appeal from an order vacating a judgment by default, upon a fair construction of an affidavit attached to the motion and forming a part thereof, which states facts clearly showing that the default was prematurely entered, it appears from a fair construction of the affidavit and motion taken together, that the notice of the motion to vacate the judgment was upon that
ground. (Quan Quock Fong v. Lyons, 668.) 9. INSUFFICIENT AFFIDAVIT OF MERITS AS TO DEFENSE.-An affidavit
of merits which merely states "that affiant was fully advised of the facts and circumstances involved in the defense" is insufficient.
(Id.) 10. AFFIDAVIT OF MERITS REQUIRED UNDER SECTION 473, CODE OF CIVIL
PROCEDURE—Not REQUIRED UNDER MOTION TO VACATE PREMATURE DEFAULT JUDGMENT.—It is to be assumed that an affidavit of merits is required in proceedings for relief under section 473 of the Code of Civil Procedure. But no affidavit of merits is required in a proceeding by motion made and granted to vacate a judgment by de
fault, as having been prematurely entered. (Id.) 11. PRESUMPTION - VERIFYING MOTION TO VACATE — CALENDAR — EN.
LARGED TIME TO ANSWER—PROTECTION EQUAL TO TIME OF SUMMONS -AFFIDAVIT OF MERITS NOT REQUIRED UNDER SUMMONS.—The court having before it the ground of the motion to acate the premature judgment stated in the affidavit, it could, and it will be presumed that it did verify it by its calendar, and finding that the default and judgment were in disobedience of its order granting further time to answer, properly vacated the same. An enlarged time to answer is as complete a protection as is the original time granted by the summons, in which latter case, it is settled that, for protection, no affidavit of merits is requisite. (Id.)
See Appeal, 2, 4, 5, 10–14; Divorce, 1-4, 8.
JURISDICTION. See Appeal, 1, 4-8; Election, 2; Estates of Deceased
Persons, 2; Guardian and Ward, 2; Interstate Commerce; Intoxicating Liquors, 4, 5; Judgments, 5; Justice's Court, 2, 4.
JURY AND JURORS. See Criminal Law, 14–18, 53–56.
JUSTICES' COURT. 1. JUSTICES' COURT OF LOS ANGELES TOWNSHIP—PROCESS_MODE OF IS.
SUANCE-GENERAL ORDER AN ILLEGAL SUBSTITUTE.—Where the justices court of Los Angeles township was created under sections 99 to 102b of the Code of Civil Procedure, and it is provided in section 102 of said code, that "all legal processes of every kind in actions or proceedings in said justices' court shall be issued by the said justices' clerk, upon the order of the presiding justice," it is held that such provision of the statute cannot be annulled by the making of a general order as a substitute therefor by the presiding justice, directing the clerk to sign all legal process that was necessary to be signed, in and about the business of said justices' court. (Nellis v.
Justices' Court, 394.) 2. IMPROPER SUMMONS-FAILURE OF JURISDICTION OF PERSONS.-A
summons issued from said court was improper and failed to give the court jurisdiction of the person of the defendant where it not only failed to comply with section 102 of the Code of Civil Procedure, in not being issued upon the order of the presiding justice, but also failed to comply with section 100 thereof, in that it was not returnable, nor the defendant summoned to appear before either the presiding justice, or before any other justice of the peace designated by him, and summoned him to appear generally
before the justices' court of Los Angeles township. (Id.) 3. CODE REQUIREMENTS MANDATORY.—Where the legislature, as here,
creates a justice's court with four justices, one of whom is a presiding justice, and by express provisions of law provides that the summons in actions therein shall be issued by the clerk only upon order of the presiding justice, and that such process shall designate the justice before whom the defendant named therein shall be required to appear, a substantial compliance with such provisions must
be deemed mandatory. (Id.) 4. NONCOMPLIANCE WITH MANDATORY LAW AS TO SUMMONS-JUDG
MENT BY DEFAULT NOT SUPPORTED.-In the absence of a compliance with the mandatory provisions of law as to summons, the court is
without jurisdiction to render a judgment by default. (10.) 5. CONDITIONS OF AUTHORITY OF CLERK TO ISSUE SUMMONS.—The clerk
of the justices' court of Los Angeles township is without authority to issue summons in an action therein, unless, after the commencement thereof, the presiding justice makes an order in writing directing him so to do, and furthermore, the name of the justice in whose department the process is returnable and before whom the defendant is required to appear should be designated in the summons. (Id.)
LANDLORD AND TENANT. 1. COMPLAINT UPON ASSIGNED LEASE-CAUSE OF ACTION-ASSUMPTION
OF LEASE BY ASSOCIATES-ACCEPTANCE AS LESSEES BY LESSOR-CON
LANDLORD AND TENANT (Continued).
SIDERATION.—Where, as one transaction, the lessee assigned the lease to one party, and such party and his associate jointly accepted the obligations of the lease, and the lessor accepted the lessee and his associate as the lessees in the lease, the assignment of the lease and the acceptance of the assignee as lessee, constituted a sufficient consideration for the promises implied in the assumption of responsibility by the associate from the date of the assignment. A complaint by the assignee of the lessor, against both accepted assignees of the lease, states a cause of action against both of them, and a general demurrer thereto was properly overruled. (Williams v.
Hawkins, 161.) 2. EVICTION OF SUBTENANT BY OVER-LANDLORD.—A subtenant is not en.
titled to recover damages for his eviction by the over-landlord, prior to the expiration of the sublease, where the terms of the original lease has expired, and the sublease expressly provides that it is "to hold only to the conditions of original lease.” (Georgeous v. Lewis,
255.) 3. LEASE—IMPLIED COVENANT OF QUIET ENJOYMENT.—Every lease in the
usual form, carries with it an implied covenant that the lessee will not be disturbed in his enjoyment during the term by the lessor, in the absence of a stipulation in the lease to the contrary; and, even then, such implied covenant of quiet enjoyment, ends with
the determination of the original estate of the lessee. (Id.) 4. EXECUTION OF SUBLEASE-NOTICE OF TERMS OF ORIGINAL LEASE.
It is the duty of a person contracting for a sublease to ascertain the provisions of the original lease; and a subtenant is charged with notice of the existence of the original lease, and is bound by its
terms and conditions. (Id.) 5. UNLAWFUL DETAINER—LEASE OF BUSINESS PROPERTY-REPAIRS OR
DERED BY BOARD OF HEALTH MADE BY LESSEE-ABSENCE OF DUTY OF LESSOR-CONSTRUCTION OF CODE.—In an action of unlawful detainer for rent unpaid under a lease of business property, in a building used as a box factory, in which a large number of persons are daily employed, the defendant cannot offset repairs made by him, which were ordered by the board of health to be made, which he had first requested the lessor to repair, since the building leased is not one "intended for the occupation of human beings" in a "dwelling house" within the meaning of section 1941 of the Civil Code, nor, in the absence of an agreement in the lease to the contrary, could the lessor be in duty bound to make such repairs upon request, under section 1942 of the same code. (Wall Estate Com
pany v. The Standard Box Company, 311.) 6. COMMON LAW RULE AS TO REPAIRS APPLICABILITY IN THIS STATE.
At common law it is the well settled rule, that, in the absence of any agreement between the parties, the landlord is generally under
LANDLORD AND TENANT (Continued).
no obligation to keep the demised premises in repair; and the common law rule in this respect is in force in this state, except as
modified by sections 1941 and 1942 of the Civil Code. (Id.) 7. HEADLINE OF SECTION 1941 OF CIVIL CODE-HEADNOTES-CONSTRUC
TION-DUTY OF LESSOR AS TO DWELLING HOUSE.—The intention and purpose of the legislature in enacting section 1941 of the Civil Code, as originally adopted in the year 1872, is revealed by the headline, which reads "Lessor to make dwelling house fit for its purpose.” Headnotes which precede each article are numbered to correspond to the section following, and purport to give in brief the subject of each of the sections. They are parts of the statute
limiting and defining the sections to which they refer. (Id.) 8. LIMITED DUTY OF LANDLORD TO REPAIR BUILDING—“SUBSEQUENT
DILAPIDATIONS”—LIMITED RIGHT OF DEFENDANT TO DEDUCT RENT. Under sections 1941 and 1942 of the Civil Code, the only duty of the landlord, after putting a building into a fit condition for the occupation of human beings, is to “repair all subsequent dilapidations," and the right given to the tenant under section 1942, that, "If within a reasonable time after notice to the lessor of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the cost of such repairs does not require an expenditure greater than one month's rent of the premises, and deduct the expenses of such repairs from the rent,” does not authorize the tenant to put in new work or new conveniences,
which did not theretofore exist, and claim credit therefor. (Id.) 9. ACTION ON CONTRACT TO STABLE HORSES AGAINST CORPORATION AND
INDIVIDUAL DEFENDANT JOINTLY-CORPORATION NOT LIABLE–PRIOR LEASE FOR YEARS.—In an action by the plaintiff as the proprietor of a livery stable, upon an alleged contract for the stabling of horses therein, charged to have been made with the corporation de. fendant and an individual defendant jointly, it appears from the record therein that no such joint contract was made, that the individual defendant confessed judgment for the amount claimed, and that the corporation was not liable thereon, since, prior to the making of such contract, it had made a lease of all its property and business to the individual defendant for the term of five years, in which it was provided that he should be responsible for all debts contracted by him, and could incur no debts on behalf of the cor
poration. (McTigue v. Arctic Ice Cream Supply Company, 708.) 10. CONSTRUCTION AND EFFECT OF LEASE-UNTENABLE CONTENTIONS OF
PLAINTIFF.—The contentions of the plaintiff that the contract in controversy, though a lease in form, with the usual covenants, was not in fact a lease, but was in legal effect an agreement of partnership, and that however construed, it was an ultra vires act of the corporation, and that in the dealings of the individual defendant with
20 Cal. App.-56