Pacific Coast Law Journal.

VOL. 2.

DECEMBER 28, 1878.

No. 18.

Current Topics.

THE Bar Association of New York has been making a little quiet investigation regarding the fees taken and charged in the offices of the Register, County Clerk, and Sheriff. Of course the obtaining of evidence was stubbornly resisted, but it was procured nevertheless, and many interesting facts established-such, for instance, as that in the Sheriff's office $11 75 was regularly charged for a bail bond, when the only legal fee was 37 cents. Proceedings before the Grand Jury will probably result, as the spoils from these "irregularities" have been enormous. Not meaning to assert that similar "irregularities" might be found to exist by a similar investigation, yet we suggest that it is within the scope of the duties our Bar Association owes to the community to make an extended investigation into the practical workings of all offices connected with the courts.

IN a recent decision (December 6, 1878), by the United States Circuit Court, District of Oregon, in the case of the Or. Wash. T. & I. Co. vs. Shaw et al., it was held that-1. The record of deeds does not impart notice of merger, which depends upon the intention of the party or other extrinsic facts; and if any one takes a conveyance of premises upon the assumption that a former mortgage to his grantor has been merged in a subsequent conveyance of the fee, he does so at his own peril. 2. A party purchasing premises upon which, as appears by the record, there is an unsatisfied mortgage, takes the conveyance with notice that the mortgage is an existing lien in the hands of some one; and that he takes sub

ject to it, unless the mortgagee is the owner thereof. 3. A valid mortgage in the hands of a bona fide assignee is preferred to a subsequent one, although the assignment is not recorded, unless the statute requires such record; but as between bona fide assignees of the same mortgage, the assignment first recorded will have priority.

THE following is a syllabus of United States vs. Throckmorton et al., decided at this term of the Supreme Court of the United States. Appeal from the United States Circuit Court for the District of California. (The full opinion will appear in our next number:)

1. It is essential to a bill in chancery on behalf of the government to set aside a patent, or a confirmation of land title under a Mexican grant, after it has become final, that it shall appear in some way, without regard to the special form, that the Attorney-General has brought it himself, or given such authority for it as will make him officially responsible, and show his control of the cause through all stages of its presentation. 2. The frauds for which a bill in chancery will be sustained to set aside a judgment or decree between the same parties, rendered by a court of competent jurisdiction, are frauds extrinsic or collateral to the matter tried by the first court, and not a fraud which was in issue in that suit. 3. The cases in which such relief has been granted are those in which, by fraud or deception practiced on the unsuccessful party, he has been prevented from exhibiting fully his case, by reason of which there has never been a real contest before the court of the subject - matter of the suit. 4. The Circuit Court of the United States has no original jurisdiction now to reform surveys made by the Land Department of confirmed Mexican grants in California.

Supreme Court of California.

NOVEMBER TERM, 1878.

[No. 6,241.]

[Filed December 9, 1878.]

ELDER, RESPONDENT, VS. SPINKS, APPELLANT.

i. AMENDED COMPLAINTS MUST BE SERVED ON ADVERSE PARTY.-Where an amended complaint is filed, it must be served on the adverse party; and it is immaterial whether or not the matter contained in the amendment is such as will materially affect the defendant on whom it is not served.

2. PLEADING-What the General DENIAL PUTS IN ISSUE.-The general denial puts in issue only the issuable facts; so where, in an action to enforce a mechanic's lien, the complaint alleges that the defendant has, or claims, an interest in the land, but that such interest is subject to said lien, the allegation that defendant claims, or has, an interest is wholly immaterial; and a general denial does not amount to a disclaimer of such interest in said land, but only puts in issue the fact that it was subject to the plaintiff's lien.

This action was brought to establish and enforce a mechanic's lien, for work and labor performed during the years 1877-78. The remaining necessary facts appear in the opinion of the court.

W. S. Goodfellow, for appellant.

B. F. Myers and James Moore, for respondent.

CROCKETT, J.

Four actions were consolidated and tried together, there being only one judgment in the whole. In the case of Elder vs. Spinks, the summons was served on the defendant on the 17th of April, and on the 22d of April the complaint was amended, but no copy was served on the defendants, nor does it appear they had notice of it. Having filed no answer, their default was entered and judgment taken against them as on a default.

The amendment, at the most, when read in connection with the original complaint, constituted an amended complaint, filed, "of course," in accordance with Section 472 of the Code of Civil Procedure. That section requires such

amended complaint to be served on the adverse party, with leave to the latter within ten days to demur or answer.

The question, whether the matter contained in the amendment is such as will materially affect the defendant on whom it is not served, is immaterial.

The default was irregularly entered, and the decree following the default is erroneous.

In the cases of Heath vs. Spinks et als. and Daley vs. Cook et als., the complaints were not verified, and the defendant, J. D. B. Cook (who is the only appellant), filed answers containing a general denial of the allegations of the complaint. At the trial no evidence was offered in support of the complaint in either action, and the court, without evidence, rendered a decree for enforcing the lien on the land, but without a personal judgment against Cook. The complaints, after averring the performance of the work for which it is sought to enforce a lien on the land, allege that Cook has, or claims, some interest in the land, but that the same is subject to the plaintiff's lien. The court below treated the general denial, in the answer, as equivalent to a disclaimer by Cook, that he had, or claimed, any interest in the land. This was error. The answer was only a denial of the issuable facts stated in the complaint, and the circumstance that Cook had, or claimed, some interest in the land, was of itself wholly immaterial, except in so far as it showed that he was a necessary party to the action. But the averment that his interest was subject to the plaintiff's lien presented a material issue, to which the answer was responsive. The answer, therefore, was not a denial that he had, or claimed, an interest in the land, but only of the fact that it was subject to the plaintiff's lien.

We deem it unnecessary, on the present appeal, to notice the other points discussed by counsel, as the judgment must be reversed for the errors already adverted to.

Judgment reversed and cause remanded for a new trial. Remittitur forthwith,

We concur: NILES, J., WALLACE, C. J., McKINSTRY, J.

CONCURRING OPINION.

I concur in the foregoing opinion, except that portion relating to the answer of Cook. I regard the allegation of the complaint that J. D. B. Cook had, or claimed, some interest in the land, as material—as the allegation of a material fact. In two of the complaints Cook is not shown to bear any other relation to the cause of action than such as arises from the fact that he has, or claims, some interest in the land, which is sought to be charged with the liens. The general denial filed by Cook put in issue every material allegation of the complaint. This is the general rule, and it has no exception, so far as I am aware. It is sometimes said that the general denial puts upon the plaintiff the burden of proof of every material averment of the complaint; but this proposition has some exceptions-for instance, certain negative averments or averments of facts which are proved by presumption-and for that, if for no other reason, the two propositions are not identical in their effect. The question of the burden of proof of an averment does not test the question as to whether the general denial puts the averment in issue. If an averment of a certain character will be regarded as true, in the absence of direct evidence upon the point, yet the fact that the defendant may adduce evidence to disprove the presumption upon which the plaintiff relies, unmistakably shows that the averment is in issue. In this case, even if the plaintiffs could have a recovery which would bind or affect an interest in the land held or claimed by Cook, without direct evidence that Cook had, or claimed, an interest in the landand I am not prepared to say that they could-Cook, it must be admitted, could have shown that he held no interest in the land, and thus have defeated such recovery. The conclusion to which I have come upon this question is, that the averment that Cook held, or claimed, an interest in the land is material, that the general denial puts it in issue, and that the denial of such averment is not to be regarded as a disclaimer by Cook of any interest in the land.

RHODES, J.