The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-01-25
A PRETTY POINT.
Attacking the Supreme
Court Reports.
CASE OF PIMA VS.. PECK.
Not Enough Signatures on an
Early Decision.
JUSTICE GAROUTTE's DISCOVERY
Only Two Justices Signed, When
Four Were Required to Make
1t Law.

During the progress of the arguments in
the Blythe case. concluded yesterday in
the Supreme Court, frequent reference
was made by the contestants to case
known as Pima against Peck, reported in
81 Cal, $40. The facts as stated in that
case are analogous to circumstances in the
Blythe matter, and consequently formed
a strong basis in the arguments OF con-
testants.
During the argument of T. J. Lyons. at
tOrney for William and David Savage.
particular stress was laid on the Pima case.
He was interrupted by Justice Garoutte.
who asked Mr.. Lyons if be was aware
that the decision had not received the sig
nature or the concurrence of the requisite
Justices to make the case available as
authority. Mr.. Lyons was naturally sur
prised at this as were the other attorneys
of contestants who occupied the same posi-
ton as Mr.. Lyons in using il as an author
ity. Justice Garoutte added that he had
examined the original opinion in the ar
chlves in Sacramento and found that the
judgment was only signed by two
Justices and the opinion specially con-
Cured IN by third.
This statement of Justice Garoutte at
once raises a question as 10 the validity of
pr enc Court.
The case of Pima against Peck was an
action brought by Maria Antonio Pima
(by William Festler, guardian) against John
Peck and Others 10 recover possession of tract
OF land Ia SOnoma County. Maria was the ille-
climate child OF Antonio Pima. II was claimed
In her behalf that her alleged father had left a
will, written in The Spanish language, IN which
after nominating his executors and making a
few minor directions, he said: "At the same time
charge you that OF my part, the third, leave
10 my daughter, Maria Antonio Pima. and all
alone to distribute among my brothers" The
will was tested by TWO witnesses.
The question arose under this whether it was
sufficient acknowledgment OF paternity as re-
CURED by the statute. 1t was contended by The
defendants that this provision was in deTogatiOn
OF the common law and should therefore be
strictly construed. The court in the judgment
said: THAT doctrine was announced and APP
piled by the court in The estate of Samuel Sand
ford, and we are OF opinion that the ruling is
correct without a doubt" This explains the
importance OF the decision TO the contestants
in the Blythe case, who are seeking 10 over
throw the judgment of The Superior Court, as
rendered by Judge Cotey in favor Of Florence
Blythe.
Inc practice at the time the decision was
render ed was for a strict construction OF the
statutes. Since that time d new code of laws
has been adopted In this State, and under the
Interpretation of them the Intent of recognition
Is regarded rather than Tie construction. In
other words, the construction or Interpretation
of The statute Is usually such that, for an eX-
ample, person ignorant of the law would not
be compelled to go 10 an attorney and have
regular papers Of adoption drawn up, In order
10 lrGiImZe an offspring born out OF wedlOck.
declaration 10 this effect il witnessed by a
competent person, is now considered sufficient,
aud the requirement OF an attesting witness is
moi Insisted upon.
The decision in the case Of Pima against Peck
was handed down at the October term OF the
court in 1866. According to The printed re-
ports II bears he following Endorsement: "Bv
the court Rhodes j." ana "Shafter j., concur
ring specially, in which concurrence Mr..
Sawyer Joined; concur in the judgment"
Now comes Justice GarOutte, who says IN the
original Opin ion the signature of only two of
the Justices appear, and in consequence the
judgment is void for lack of the sufficient num-
Der. HIS exact language, quo ed in the ap-
peal for rehearing tiled by the Williams
claimant says: This case Is not authority
because four Justices participated in its de-
ciSlOn (Justice Sanderson not taking paTr aud
TWO OF these Justices concurrlng alone In the
judgment"
Then the attorney for the Williams claimants
secured afidavitS, saying that Justices Currey
and SanderSon concurred In the opinion of
Rhodes and Sawyer, and Shafter c0ncurred in
The Judgment.
Tie fact that the authenticity of the CaIifor-
MA reports is attacked by no less a distin-
guished person than Justice OF the very court
from which they emanate gives rise TO the Ques-
ton as 10 how many decisions, now recognized
as standard authority, lack the requisite num-
beT of signatures TO make them binding II
suggests the possibility of names being erased
or names being forged OF the Justices partic-
pating III opinions, or dissenting as the case
may be.
The fact the decision is alleged to be "by the
court" adds another element of uncertainty to
the records. Ii Is said it was the custom in
those days for The Judges to take the docu-
ments home, pass them around. one write a
decision and then have the others join with him.
In this way 1t Is possible that the Justices iu-
tended 10 sign the decision, and in passing 1t
around this formality was dispensed with.
Nevertheless the fact remains that in the
Supreme Court reports there is a case reported
as being decision "bv the cOurtn of which
the original lacks the requisite authority.