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7 Cal. 110

Nims v. Johnson

California Supreme Court

Decided July 1, 1857

California Supreme Court · decided 1857-07-01

<p>Appeal from the District Court of the Fifth Judicial District, County of Amador.</p> <p>This was an action to recover possession of a tract of land in Amador county, upon which plaintiff had located school-land warrants. It was before this Court in January Term, 1856, and was remanded to the Court below. See 6 Cal., 8.</p> <p>The case was tried before a jury, who found a verdict for plaintiff. Motion for a new trial was made, and overruled, and judgment entered for plaintiff. Defendants appealed.</p> <p>The errors assigned, are so explicitly stated in the opinion of the Court, that no explanation of them is needed, except, perhaps, of the third. The defendants offered to prove, by parol, the pleadings and issues in the case at its first trial, all the records of the Court, except the judgment-hook, having been destroycd by fire. The plaintiff objected to the introduction of such testimony, unless accompanied with a certified copy of the judgment. The objection was sustained under the exception of defendants, wrho could not then produce a copy of the judgment, the judgment-book being at Mokelumne Hill, where the case was first tried, before the formation of Amador county.</p>

Cited by 2 later decisions — most recently July 1912

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1857-07-01

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Murray, C. J.,

¶1delivered the opinion of the Court—Terry concurring.

¶2When this cause was here before, we held that the act of May 3, 1852, commonly known as the “ school-land act,” did not conflict with the act of Congress of 1841, and that it was competent, in this respect, for the Legislature to determine what should constitute evidence of title between the citizens of this State.

¶3This point is again presented, but we are indisposed to review our former opinion.

¶4There are but three assignments of error which it will be necessary to notice. First, that the court erred in admitting evidence of location of the school-land warrants, because they were recorded by the county recorder, instead of the county clerk, as directed by law.

¶5This would be good ground of reversal, if the fact anywhere appeared. The appellant has not prepared a statement on appeal from the final judgment, and although there is a statement on motion for new trial, which is sufficient so far as it goes, it does not contain the evidence complained of. The only reference to it, is in the objection to the introduction of the land warrants on this ground, but it is not shown in fact, either by setting out the acknowledgments, or by the agreement of parties, that they were filed with the county recorder, and wo cannot presume such was the case, simply because the appellant objected to their introduction on this ground.

¶6The second error relied on, is the refusal of the Court to per*113mit the witness to testify whether the land in question was mineral land.

¶7The act of May 3d, 1852, makes no reservation of mineral lands, and a party is not prohibited, either by that law or any other, that we are aware of, from locating school-land warrants on any mineral lands of the state.

¶8The third assignment of error is untenable. It was shown that the judgment-book, containing the record of the judgment in the former suit, was not destroyed. Under these circumstances, it would have been improper, even admitting it could be done, to have admitted parol evidence of the pleadings and issues between the parties, unless the appellant had also been prepared to introduce a certified copy of the judgment.

¶9Judgment affirmed.

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