King v. Randlett , 33 Cal. 318 ( 1867 )

By the Court, Sanderson, J.:

The plaintiff having obtained his alleged interest in the Independent Tunnel Company’s claim by purchase, which purchase was evidenced by a deed or bill of sale, was bound to produce his deed or bill of sale for the purpose of proving his title—that being the best evidence—or prove its loss for the purpose of laying a foundation for the introduction of secondary evidence as to its contents. (Patterson v. Keystone Mining Company, 30 Cal. 365.) The evidence of the loss was insufficient. It showed that in all probability the bill of sale was left in the plaintiff’s store at Yorkville at the time the plaintiff sold out and delivered possession of the store and its contents to his nephew. His nephew, at the time of the trial, was in the county and in reach of the process of the Court, yet he was neither called as a witness as to what had become of the bill of sale, nor does it appear that he was ever questioned by the plaintiff touching the missing document. It is true that the plaintiff searched the store about a year after the nephew took possession, but that was not sufficient. Under, the circumstances detailed by the plaintiff, which are very similar to those presented in the case just cited, inquiry should have been made of the nephew for the missing document in order to sufficiently establish its loss. It does not appear that any search was made for the purpose of this trial.

In view of the fact that the plaintiff acquired his interest by purchase, as stated by his counsel in opening the case to the jury, and not by virtue of his being one of the original members of the company who located the claim, we are at a loss to perceive how the testimony of the witness Deiner as to the fact that the plaintiff had acted gs a member of the company, or of the plaintiff himself as to the payment of assessments, or of the books of the company showing that the plaintiff had acted and been received as a member of the company, can be regarded as competent and relevant. Undoubtedly this testimony would have been competent and relevant had the plaintiff claimed title as an original member of the company, for it would have tended to prove that he was a member of the company, and therefore that he held an interest in the claim by virtue of the company’s location. But in view of his admission that he had acquired his interest by purchase from some one or more of the original locators, which admission does not seem to have been afterwards withdrawn, we think he was bound to make title by proof of his purchase—either by the production of his deed or bill of sate, if he. had one, or by proof of a verbal sale and delivery of possession, if the purchase was made prior to the passage of the Act of April 13th, 1860. (Statutes, p. 175; Patterson v. Keystone Mining Company, 30 Cal. 363; Goller v. Fett, 30 Cal. 481.)

The Court did not err in excluding the record from the Court of A. B. Scott, Justice of the Peace for Township No. 5, as evidence of the defendant’s title. While the statute, in cases where two or more persons are associated in any business and transact such business under a common name, allows suit to be brought against them by such company name, it does not allow suit to be brought against them by a company name which is not the name under which they transact their business. The statute is in derogation of the common law, and must be strictly construed.’ As appears upon the face of the record, the action was commenced, not against the Independent Tunnel Company, but against the Independent Company, which is certainly a different name. True, the Justice addressed the summons to the Independent Tunnel Company, but this he had no right to do. On the contrary, he should have followed the style given in .the complaint, or its substitute, the account which had been filed as a complaint and which was against the Independent Company. (Lamping v. Hyatt, 27 Cal. 102.) The return shows that the summons was served on Randall, a member of the Independent Company, and not of the Independent Tunnel Company. This was no service upon the latter company. True, the Court entered judgment against the Independent Tunnel Company, but this the Court had no power to do, for the judgment was by default. (Lamping v. Hyatt, supra.) Had the company appeared and pleaded the misnomer in abatement, if it was a misnomer, or waived it by not pleading it, the result might have been different. But as it is, the record fails to show either an action against or a service upon the Independent Tunnel Company, and the judgment was therefore utterly null and void. (Mayo v. Ah Loy, 32 Cal. 477.) Nothing can be presumed in favor of the jurisdiction of the Court. Being an inferior Court, its jurisdiction must be made to appear affirmatively. The defendant was bound to show that the Court had j urisdiction. This the record offered did not prove, but quite the contrary.

Hor did the Court err in excluding the judgment, the Constable’s deed to Garrison, and the assignment of the Constable’s deed by Garrison to the defendant, when offered as tending to show color of title under the statute in relation to adverse possession. The instrument from Garrison to the defendant was not a deed of the mining claim, but merely an assignment of “his right, title and interest in and to ” the Constable’s deed, and not to the land therein described. Title passes by deed and not by an assignment of the deed to the assignee. Whether, had Garrison conveyed to the defendant, the judgment and Constable’s deed in connection with such conveyance would have been admissible as showing color of title in aid of the defendant’s plea of the Statute of Limitations, it is therefore unnecessary to determine. But upon this point see Jackson v. Woodruff, 1 Cow. 286, and Gilbert v. Peru Iron Company, 7 Wend. 511.

Judgment reversed and a new trial ordered.