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(280 P.) U. S. Webb, Atty. Gen., and J. Charles roneous. It also follows that any construcJones, Deputy Atty. Gen., for the People. tion which might be given in this case of sec

C. C. McDonald, of Woodland, for respond- tion 954 of the Penal Code would be mere ent.

obiter and, though argued at some length by

counsel, would not constitute a precedent PLUMMER, J. The defendant in this ac- in any subsequent action, and therefore we tion was arrested upon three diifferent com- express no opinion as to whether, when three plaints charging different offenses, under the separate preliminary hearings have been Wright Act, had three separate preliminary bad and a defendant bound over in each of examinations, and was bound over for trial said separate hearings, the district attorin the superior court upon the three several ney may incorporate all of the three charges complaints, and thereafter an information in one information. The appeal in this acwas filed by the district attorney charging tion, not having been taken within the statthree separate offenses in three separate utory time, the motion to dismiss should be counts. Upon being arraigned on the in- granted, and it is so ordered. formation just referred to on the 7th day of January, 1924, the defendant, through his counsel, moved the court to strike out two

We concur: FINCH, P, J.; HART, J. of the counts contained in sàid information, which motion was thereupon granted. Thereafter and on the 8th day of January, the district attorney moved the court to reconsider its order striking the two counts from

PEOPLE v. GIBBS. (Cr. 756.) the information, and after argument this motion was taken under consideration until (District Court of Appeal, Third District, Calthe 21st day of January, 1924, upon which

ifornia. Sept. 17, 1924.) date the court filed its opinion and directed

Criminal law ew655(1)-Court's announcement the entry of an order denying the motion

of recess to investigate "certain matters" to reconsider. Thereupon the district at

held not prejudicial to defendant. torney, in open court, announced his inten

Where juror in a former case told judge tion of appealing to this court from the or- of remarks of her fellow juror in such case, der striking out the two counts referred to, and accepted as a juror in present case, that he and apparently from the order refusing to would not convict on testimony of certain reconsider its order theretofore made on the state's witness, court's announcement of recess 7th day of January, 1924.

because of "certain matters having come to the Upon this state of the record the defend attention of the court that require investigaant moves this court for an order dismissing

tion" held not prejudicial to defendant, as causthe appeal in said cause, on the ground that ing accused juror to bring in verdict of guilty. it is taken too late. Section 1240 of the Appeal from Superior Court, Lassen CounPenal Code reads as follows:

ty; H. D. Burroughs, Judge. “An appeal may be taken by the people by an Budd Gibbs was convicted of selling intoxinouncing in open court at the time the order is cating liquor, and he appeals. Affirmed. made that the people appeal from the same."

C. C. Holl and Grover C. Julian, of Susan

ville, for appellant. This identical question was before this

U. S. Webb, Atty. Gen., and J. Charles court in the case of People v. Apple, 57 Cal. Jones, Deputy Atty. Gen., for the People. App. 110, 206 P. 487. In that case this court, speaking through Justice Hart, held that:

FINCH, P. J. The defendant was con"The limit of time fixed by the code within victed of the unlawful sale of intoxicating which an appeal may be taken is jurisdictional, liquor. This appeal is from the judgment and no jurisdiction is conferred on the court to of conviction and the order denying his mohear and determine an appeal attempted to be tion for a new trial. The only ground urged taken after the expiration of the time fixed."

for a reversal is that one of the jurors was

guilty of misconduct. The appeal in that case not having been Two witnesses testified positively that the taken within the statutory time, the motion defendant made the alleged unlawful sale. to dismiss the appeal was granted.

The name of one of the witnesses so testiThe transcript in this case, as certi- | fying is C. L. Fitch, a detective employed to fied to by the trial court and the county secure evidence in liquor cases. On his voir clerk, show's the date of the transactions dire examination, the juror whose conduct just as above stated, and it necessarily fol- is complained of testified that he knew of no lows that this court has no jurisdiction to reason why he would not make a fair and inquire into or determine whether the ac- impartial juror, and that, he would not tion of the trial court in sustaining the mo- permit anything outside of the evidence to tion of the defendant was or was not er- l influence his verdict. At the hearing of de

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fendant's motion for a new trial his counsel, 2. Judgment w747(6)- Judgment rendered in presented and read in evidence an affidavit unlawful detainer cannot extend to matters made by a woman who had served as a juror

not related to issue of possession. in the trial of an earlier liquor case, in

Judgment rendered in unlawful detainer can which Fitch was a witness. She therein stat- have no broader application than the proceeded that during the progress of the trial of ing itself, and, latter being confined solely to such earlier case the juror in question in therein cannot be extended to include other

the one issue of possession, judgments rendered the instant case, referring to the witness

matters. Fitch, said that "he thought the witness was a hard case, that he would hang a man for 3. Judgment w747(6) Judgment in unlawful

detainer held not bar to action to determine 25 cents” and that "he would not convict a

title. man on Mr. Fitch's testimony." It appears

Judgment for defendant in unlawful dethat, after the jury had been sworn in the tainer held not a bar to subsequent action, instant case, she related the foregoing facts against same defendant to determine title to to the trial judge. Thereafter, at the next real property involved in the former action, adjournment of court, the trial judge said: though same facts were relied on as a defense.

"Certain matters having come to the attention of the court that require investigation, we Appeal from Superior Court, Los Angeles will take a recess until 1:30 o'clock this after- County; J. P. Wood, Judge. noon."

Suit by Ruth M. Bekins and others against There is nothing in the record to indicate Ella Smith Trull. From judgment for dethat any juror was aware of the communica- fendant, plaintiffs appeal, plaintiff I. H. tion which had been made to the trial judge, Preston dismissing the appeal as to him. or had any intimation of the nature of the Reversed. matters referred to by the judge as requiring John H. Miller, of San Francisco, and investigation, or even knew that such matters Guy F. Bush, of Los Angeles, for appellants. had any relation to the case on trial. Appel

R. D. McLaughlin and J. B. McLaughlin, lant argues that the statement of the trial both of Los Angeles, for respondent. judge caused the juror “to depart from his own convictions and bring in a verdict of

CURTIS, J. This action was instituted by guilty, when it was not in reality his verdict. He must have recalled then bis mis- the life tenancy of the defendant in a cer

the plaintiffs to obtain a decree terminating conduct regarding" the earlier case. It is

tain lot and two-story house erected thereon, impossible to discover in the facts stated any the legal title to which stood in the name of logical basis for appellant's conclusions. If the juror was biased, his bias was against further decreed that the said Ruth M. Bekins

plaintiff Ruth M. Bekins, and to have it the prosecution and in favor of the defend held the title to said real property in trust ant. Had counsel for defendant known of for the plaintiffs Martin Bekins and I. H. the juror's prejudice against the witness for Preston, in the proportion of an undivided the prosecution, it is highly improbable that

seven-eights to said Martin Bekins and an any challenge would have been interposed on

undivided one-eighth to said I. H. Preston, behalf of defendant. The motion for a new

and that the defendant be required to vacate trial was properly denied.

and deliver up the possession of said premThe judgment and the order are affirmed.

| ises to the plaintiffs. It was alleged in the

complaint that defendant had violated and We concur: PLUMMER, J.; HART, J. broken the conditions upon which her right

of possession depended, and that by reason of said breach by defendant of said conditions she had forfeited all right to the use and possession of said real property. The ac

tion was tried upon plaintiffs' fifth amended BEKINS et al. V. TRULL. (Civ. 4280.) and supplemented complaint and defendant's (District Court of Appeal, Second District. Di- answer thereto. The complaint was not ver

vision 1, California. Sept. 27, 1924. Hear. ified, and the answer contained, besides a ing Denied by Supreme Court Nov, 21, 1924.) | general denial, four separate and affirmative

defenses. The first of these, alleging the 1. Judgment *747(6)-General rule that de nonjoinder of defendant's husband as a party fense determined in prior action is bar to defendant in said action, is not involved in second action held not applicable to judgment this appeal. In the second affirmative defense in unlawful detainer. General rule that judgment in a former ac

defendant alleged that the plaintiff Ruth tion is a bar to a second action, where the de- M. Bekins holds the legal title to said real fense good in the instant action was determined property in trust for defendant; that prior in the prior action, held not applicable to judg- to October 20, 1913, defendant was engaged ment in unlawful detainer, in view of limited in certain Christian and religious work in scope and purpose of such action.

the city of Los Angeles; that the plaintiffs

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(230 P.) Martin Bekins and I, H. Preston professed consent, the court found in favor of the deto be greatly interested in the work being fendant upon her said plea of estoppel, and done by defendant, and to aid and assist her rendered judginent in her favor. By said in carrying on said work they purchased judgment it was decreed that plaintiffs take said real property for the defendant, and in- nothing by said action; that plaintiff Ruth duced her to take possession thereof, and to | M. Bekins holds the legal title to said real erect a chapel thereon for the purpose of con- property in trust for the defendant and not ducting religious services; that, induced otherwise; that the defendant is the rightful wholly by said promises and representations and equitable owner in fee of the real propthat they had purchased said property for erty described in the complaint; that Ruth defendant, she moved thereon, and expended M. Bekins execute and deliver to defendant various sums of money in the erection of said a good and sufficient deed of conveyance of chapel and in the improvement and repair said real property; and that the title of deof the dwelling house thereon; that said real fendant to said real property be quieted property prior to its purchase by the said against plaintiffs and each of them. From Martin Bekins and I. H. Preston, stood in this judgment plaintiffs have appealed, but, the name of Emil Schultz and wife, who since the perfection of said appeal the said were the owners in fee thereof, and that on I. H. Preston has dismissed said appeal in so or about the 20th day of October, 1913, the far as the same applies to him. said Martin Bekins and I. H. Preston, for There were two trials of said former acthe sole use and benefit of the defendant, tion. The first resulted in a judgment in paid to the said Emil Schultz and wife the favor of plaintiff Ruth M. Bekins, but on apsum of $4,000, the purchase price and con- peal this court reversed said judgment, on sideration therefor in full, and thereupon the ground that the undisputed evidence of said Emil Schultz and wife, by grant deed, the plaintiff showed that the defendant was for the purchase price and consideration so vested with a life estate in said real proppaid by them for defendant, conveyed said erty, and that "it may be that the condition real property to said Ruth M. Bekins; and upon which defendant's right to the possesthat said Ruth M. Bekins has ever since sion of the property depends has been brokheld and still holds the naked title to said en, and that the plaintiff is entitled to have property as trustee for said defendant. De- the estate of the defendant declared forfendant then proceeded to allege in her third feited. If so, it must be done in some proaffirmative defense that on December 5, 1916, ceeding other than that brought to secure the plaintiffs, through the said plaintiff Ruth the summary remedy afforded by the Code M. Bekins, instituted an action against said to a landlord whose tenant has breached defendant to recover possession of said real

some condition of his lease.” 37 Cal. App. property; that defendant filed an

222, 174 P. 96. After the reversal of said to plaintiff's complaint therein, in which defendant alleged, by way of an affirmative de judgment the action was again set for trial. fense, the same facts as are contained in The plaintiff, although notified of the day her second affirmative defense herein; and of trial, was not present. The trial referred that thereafter, on the trial of said action, to by the defendant in her third affirmative the court found all of the allegations of the defense was the second trial of said action, complaint of plaintiff in said action untrue, and the judgment which is herein pleaded as and all of the allegations of the answer of an estoppel was the judgment rendered at defendant therein to be true, and rendered said second trial. judgment in favor of the defendant and [1-3] The only question involved in this against the plaintiff therein. In her fourth appeal is: Were the plaintiff's estopped in affirmative defense in the present action de the present action from proving their case fendant pleads that the plaintiffs are es- by the judgment rendered in the former actopped by the judgment rendered in the for- tion? The first action, as we have already mer action from disputing any of the al- seen, was an action of unlawful detainer, legations of fact contained in defendant's af- and the present action is one in the nature firmative defense, and which were found by of an action to quiet title. In the first the court to be true, and from introducing action the sole question in issue was the any evidence in opposition or contrary to right to the possession of the real property said facts, or any of them.

described in the complaint. Felton V. MilUpon the trial of the present action, and lard, 81 Cal. 540, 21 P. 533, 22 P. 750; upon the motion of the defendant, the de- Knowles v. Murphy, 107 Cal. 107, 40 P. 111. fense of estoppel interposed by the defendant in the present action the question in issue was first considered by the court, and, after is the title to said real property. It has been the admission of the judgment roll and files repeatedly held in this state that a judgin the former action, and the stipulation ment in an action of unlawful detainer is of the parties that the first action was pros- not a bar to an action to determine the title ecuted by the plaintiff Ruth M. Bekins for to the real property involved in the former and in behalf of all the plaintiffs in the action. Martin v. Bartmus, 189 Cal. 87-91, 'present action, and with their knowledge and / 207 P. 550; Fish v. Benson, 71 Cal. 4:5


12 P. 454; Kirsch v. Smith, 64 Cal. 13, 27 | gle one of the right to possession at the time P. 942.

of the commencement of the action. "Since an action of forcible entry or unlaw "The very object the Legislature had in view ful detainer involves merely the rights of pos- in enacting the statute under which the appelsession and not title, the judgment is not an lants were proceeding was to afford a summary estoppel as to the latter.” 15 Cal. Jur. § 206. and adequate remedy for obtaining possession

"Judgments in actions of forcible entry and of premises withheld by tenants in violation of unlawful detainer are, to the same extent as the covenants of their lease, and this object judgments in other actions, conclusive upon the would be entirely frustrated if tenants were questions within the issues and determined by permitted to interpose every defense usual or the court or confessed by the parties. The title permissible in ordinary actions at law." Philto the property is never in issue in these ac- lips v. Port Townsend Lodge, 8 Wash. 529, 36 tions, and therefore, the judgment, whether for Pac. 476; Arnold v. Krigbaum, supra. plaintiff or defendant, cannot affect the title." Freeman on Judgments [4th Ed.] $ 302a.

Being thus limited in its scope and pur

pose, a judgment rendered in such an action Respondent relies upon the cases of Wil- can have no broader application than the liams v. MacDonald, 180 Cal. 546, 182 P. 29, proceeding itself, and, the latter being conand Estate of Clark, 190 Cal. 354, 212 P. fined solely to the one issue of possession, 622. These cases hold in effect that, where judgments · rendered therein cannot be exthe judgment roll in the first action shows tended to include other matters. Perhaps no that a defense, good as to the second action, better illustration, indicating the narrow was passed upon by the court in the first ac- limits to which an action of unlawful detion, and there determined in favor of one of tainer is confined, can be found than the the parties and against the other, the judg- very case for Bekins v. Smith, 37 Cal. App. ment in the first action is a final and conclu- 222, 174 P. 96. It was there held, as we have sive defense to the second action. This is un already seen, that the evidence showed that doubtedly the general rule, but evidently a the defendant therein had an estate for life distinction is made regarding a judgment of in the real property in controversy, but, if unlawful detainer. The reason for this dis- she had broken the conditions upon which tinction appears to be that in an action of her right of possession was held, and thereunlawful detainer the court is without juris- by forfeited her estate, these matters could diction to try any issue, except that involv- not be litigated in an action of unlawful deing the possession of real property, and tainer, and the court in express language therefore any judgment rendered by such a stated that it would be necessary for the court in such an action cannot affect the plaintiff in said action to institute sonie dif. title to said real property. Nor is any find- ferent proceeding if she proposed to show a ing of fact by the court, rendering judgment breach of this condition. We might say in in the action for the possession of the real passing that it would indeed be a strange property, res adjudicata between the parties anomaly in the law for this court, after de in a subsequent proceeding wherein the is-ciding in the former case of Bekins v. Smith sue involved is the title to said real prop- that plaintiff could not litigate the validity erty. The action of unlawful detainer is a of the title to the real property in said acstatutory proceeding, and is governed solely tion, now to hold that plaintiffs are estopped by the provision of the statute creating it. by a subsequent judgment, rendered by the It was designed for the purpose of providing trial court in said former action, from litia speedy and summary remedy to determine gating the very issue which the court held the right to the possession of real property could not be considered in the previous acin the cases specified in the statute. It can- tion. We therefore conclude that the plainnot be used for any other purpose than those tiffs in this action were not estopped by the enumerated therein. No cross-complaint or judgment in the former action from proving counterclaim is ermitted in such an ac the allegations of their complaint. Chase v. Peters, 37 Cal. App. 358, 174 P. The judgment in said action in favor of 116; Arnold v. Krigbaum, 169 Cal. 143, 146 defendant and against plaintiff's Ruth M. P. 423, Ann, Cas, 1916D, 370. No issue can be Bekins and Martin Bekins is reversed. raised in such action regarding the rights of the parties to the real property save the sin

We concur: CONREY, P. J.; HOUSER, J.

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(230 P.)

said premises, nor to assign or transfer this POWELL et al. v. MOHR et al. (Civ. 3955.) lease

without the written consent"

of the lessor. The instrument also contained (District Court of Appeal, Second District, Division 2. California. Sept. 15, 1924.)

a clause reciting that:

“It is hereby agreed by and between the par1. Landlord and tenant Ow78(1)-Evidence ties hereto, that in the event that the (lessee)

held to sustain finding that assignor of lease desires to transfer this lease and the (lessor) fraudulently misrepresented lease good and shall fail, or refuse to give his consent to the transferable.

transfer, then each party hereto shall appoint In action by assignee of lease against as one person and the two so appointed shall apsignor to recover consideration for assignment point a third party and whatever decision these on ground of fraudulent misrepresentations, three come to shall be final." evidence that assignor at time of making assignment knew that lessor had instituted suit Thereafter, by indorsements on the lease, to dispossess her for nonpayment of rent, held Jaus assigned it to two parties of the name to sustain finding that assignor had fraudulently of Hoff, the Hoffs assigned it to Annette misrepresented that she had a good and trans- Mohr, and Mohr assigned it to Charles H. ferable lease.

Powell and Maud Humfreville. Each of 2. Landlord and tenant mw 78(1)-Arbitration these successive assignees, or groups of as

provision in lease held not applicable, where signees, took possession of the property imassignor had no assignable interest in lease. mediately following the assignment to him In action by assignee of lease against as

or to them. Powell and Humfreville comsignor to recover consideration for assignment menced the present action for the purpose of on ground of fraudulent misrepresentations, clause in original lease providing for arbitra- recovering the sum of $750, alleged to have tion in case of disagreement between lessor been paid by them to Annette Mohr as a conand lessee as to assignment, held not applicable, sideration for her assignment to them. The assignor having no assignable interest in lease, recovery was sought on the ground of fraudby reason of suit instituted by lessor to dispos- ulent misrepresentation. J. M. Erickson was sess assignor for nonpayment of rent.

the broker who negotiated the assignment 3. Evidence Ow340(1)-Proof of entry and now and he was made a defendant under allega

tice of entry unnecessary before introducing tion that he was a party to the misrepre judgment in evidence; "judgment roll;" "ju- sentation. Judgment went against both dedicial record."

fendants for the amount prayed. Defendant Where judgment was offered in evidence Mohr alone appeals. two years after its date and certificate of clerk

[1] The trial court found that Erickson on judgment roll recited that it was true copy and appellant represented to respondents that of judgment and recorded, etc., proof of entry appellant was the owner of the lease and and notice of entry were not necessary, requirements of Code Civ. Proc. $ 659, not af- could sell it. It was specially found as to apfecting evidentiary value of judgment in an- pellant that she represented to respondents other action, nor is notice of entry part of that she "was ready and able to transfer" "judicial record” which under section 1905 may the lease "free and clear of any encumbrance be proved by production of original or copy and without any let or hindrance to the calm, thereof, and section 670, specifying papers quiet and peaceful enjoyment thereof." It constituting. "judgment roll,” which is equivalent of “judicial record,” does not include notice was also found that all these representaof entry of judgment.

tions were false. Appellant contends that [Ed. Note.--For other definitions, see Words the findings mentioned were not supported and Phrases, First and Second Series, Judg- by the evidence. None of the successive asment Roll; Judicial Record.)

signments of the lease was consented to by

Haas before it was made, but he in effect Appeal from Superior Court, Los Angeles ratified the first assignment—that to the County; Walton J. Wood, Judge.

Hoffs—by a letter which he wrote soon after Action by Charles H. Powell and another they took possession of the property. Apagainst Annette Mohr and another. From

pellant contends that this circumstance dejudgment for plaintiffs, named defendant ap- stroyed the legal effect of the clause of the peals. Affirmed.

lease requiring a consent of the lessor to as

signments, although we need not decide Benjamin W. Shipman, of Los Angeles, whether it so operated, for respondents asfor appellant.

sume the correctness of appellant's contenC. L. Belt, of Los Angeles (A. E. Hamilton, tion for the sake of argument and justify of Los Angeles, of counsel), for respondents. the findings as to misrepresentation upon

other grounds. These grounds rest upon the WORKS, J. One Beach, whose successor following evidence: At the time appellant in interest was one Haas, demised to one made the assignment to respondents there Jaus a certain apartment house under a writ- was a controversy between her and Haas upten lea se which contained a provision that on the question whether she was in default the lessee was “not to sublet the whole of in the payment of certain installments of her

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