Opinion
Appeal from the District Court, First Judicial District, County of Santa Barbara.
Ejectment to recover a tract of land in Santa Barbara County. The defendant filed an answer.
This is a copy of the judgment:
" This cause came on regularly for trial. The said defendant appeared by his attorneys. A jury of twelve persons was regularly impaneled and sworn to try said cause. Witnesses on the part of the defendant were sworn and examined. After hearing evidence, the arguments of counsel and instructions of the court, the jury retired to consider their verdict, and subsequently returned into court, and being called, answered to their names, and say they find a verdict for the defendant.
" Wherefore, by virtue of the law and by reason of the premises aforesaid, it is ordered, adjudged and decreed, that said plaintiff have and recover nothing from said defendant, and that defendant recover of the plaintiff his costs and disbursements incurred in this action, amounting to the sum of eighty-eight and sixty one-hundredths dollars.
" Judgment rendered October 31, A. D. 1870."
The defendant appealed from the judgment.
COUNSEL
B. S. Brooks and Wm. Leviston, for the Appellant, argued that when the plaintiff did not appear, the only judgment which could be rendered was one of nonsuit.
Charles E. Huse, for the Respondent.
OPINION By the Court:
It may be conceded, as claimed by the appellant, that in such a case as this, " if the plaintiff does not appear at the trial, the only judgment that can be entered is a judgment of nonsuit or dismissal."
But it is not made manifest by the record that the plaintiff did not appear at the trial. It is not claimed that it is, except by inference sought to be drawn from the recitals which precede the judgment as entered by the clerk. These, so far as supposed to be material, are as follows: " This cause came on regularly for trial. The said defendant appeared by his attorneys."
There being no affirmative recital that the plaintiff appeared at the trial, it is now claimed that the fact that he did not appear is thereby made manifest.
But this position cannot be maintained. If all the recitals by which the judgment is preceded had been omitted from the record, such omission would not have affected the validity of the judgment in any respect.
Judgment affirmed.