Naftzger

I dissent. I think the judgment in No. 14705 is erroneous, and should be reversed. In the other case, No. 14704,1 concur in the judgment of reversal.

The above-entitled causes between the same parties and relating to the same subject-matter will be considered together for convenience, if not of necessity. As No. 14705 was first tried, it will be first stated. It is an action upon two *84 promissory notes made by the defendants, each for two thousand five hundred dollars, dated September 8, 1887, one payable one year, and the other two years after date. It was commenced March 10, 1890. The complaint is in two counts in the usual form, and is on its face sufficient. The answer of the defendants expressly admits each and every allegation of the complaint, but alleges that there was no considera' ion for said notes, or either of them, other than a written contract of even date with the notes, whereby the plaintiff agreed to sell and convey to the defendants, and the defendants agreed to buy from plaintiff, a certain lot or parcel of land, and to pay therefor seven thousand dollars—two thousand dollars upon the execution of the contract, two thousand five hundred dollars in one year, and two thousand five hundred dollars in two years from date of contract; the deferred payments being evidenced by the two notes described in the…

I concur in the judgment. In my opinion, however, the error of the court below was not in admitting the judgment roll in evidence, but in determining that it constituted a bar to the plaintiff’s right of recovery. The evidence offered — the judgment roll — was relevant to the issue presented by the answer, and of a character competent to establish that issue. The objection that it was not sufficient in itself for that purpose went to its weight, and not to its admissibility. It was a judgment that had been rendered between the same parties upon the same cause of action, and by a court of competent jurisdiction, and unless it is to be held that a judgment is uot under any circumstances admissible in evidence *89 until the time for an appeal therefrom has expired, the court properly received it. Section 1049 of the Code of Civil Procedure does not purport to prescribe a rule of evidence, but merely to determine the condition of an action after judgment has been rendered, and, inferentially, the effect of the judgment; and there are many cases in which a judgment is admissible in evidence at any time after its entry. The court could not anticipate that this was all the evidence to be…