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 *89until 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 given upon that issue, and thus exclude it from being considered. It might be shown that there had already been a final determination upon appeal, or that the parties had consented that there should be no appeal. When, however, upon the submission of the case it appeared to the court that a year had not elapsed since the entry of the judgment, and no other evidence upon that issue had been introduced, the court should have held that it did not constitute a bar, for the reason that under the provisions of section 1049 of the Code of Civil Procedure the action was deemed to be still pending.
Paterson, J. I concur in the views of Mr. Justice Harrison.
Garoutte, J.—I concur.