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(230 P.)

U. S. Webb, Atty. Gen., and J. Charles roneous. It also follows that any construcJones, Deputy Atty. Gen., for the People. C. C. McDonald, of Woodland, for respondent.

PLUMMER, J. The defendant in this action was arrested upon three diifferent complaints charging different offenses, under the Wright Act, had three separate preliminary examinations, and was bound over for trial in the superior court upon the three several complaints, and thereafter an information was filed by the district attorney charging three separate offenses in three separate counts. Upon being arraigned on the information just referred to on the 7th day of January, 1924, the defendant, through his counsel, moved the court to strike out two of the counts contained in said 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 the information, and after argument this motion was taken under consideration until the 21st day of January, 1924, upon which date the court filed its opinion and directed the entry of an order denying the motion to reconsider. Thereupon the district attorney, in open court, announced his intention of appealing to this court from the order striking out the two counts referred to, and apparently from the order refusing to reconsider its order theretofore made on the 7th day of January, 1924.

tion which might be given in this case of section 954 of the Penal Code would be mere obiter and, though argued at some length by counsel, would not constitute a precedent in any subsequent action, and therefore we express no opinion as to whether, when three separate preliminary hearings have been had and a defendant bound over in each of said separate hearings,. the district attorney may incorporate all of the three charges in one information. The appeal in this action, not having been taken within the statutory time, the motion to dismiss should be granted, and it is so ordered.

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Criminal law ~655(1)—Court's announcement of recess to investigate "certain matters" held not prejudicial to defendant.

Where juror in a former case told judge of remarks of her fellow juror in such case, and accepted as a juror in present case, that he would not convict on testimony of certain state's witness, court's announcement of recess 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 the appeal in said cause, on the ground that

it is taken too late. Section 1240 of the Penal Code reads as follows:

"An appeal may be taken by the people by announcing in open court at the time the order is made that the people appeal from the same."

This identical question was before this court in the case of People v. Apple, 57 Cal. App. 110, 206 P. 487. In that case this court, speaking through Justice Hart, held that:

"The limit of time fixed by the code within which an appeal may be taken is jurisdictional, and no jurisdiction is conferred on the court to hear and determine an appeal attempted to be taken after the expiration of the time fixed."

The appeal in that case not having been taken within the statutory time, the motion to dismiss the appeal was granted.

tion" held not prejudicial to defendant, as causing accused juror to bring in verdict of guilty.

Appeal from Superior Court, Lassen County; H. D. Burroughs, Judge.

Budd Gibbs was convicted of selling intoxicating liquor, and he appeals. Affirmed.

C. C. Holl and Grover C. Julian, of Susanville, for appellant.

U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.

FINCH, P. J. The defendant was convicted of the unlawful sale of intoxicating liquor. This appeal is from the judgment of conviction and the order denying his motion for a new trial. The only ground urged for a reversal is that one of the jurors was guilty of misconduct.

Two witnesses testified positively that the defendant made the alleged unlawful sale. The name of one of the witnesses so testiThe transcript in this case, as certifying 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, shows 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-influence his verdict. At the hearing of deFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

unlawful detainer cannot extend to matters not related to issue of possession.

Judgment rendered in unlawful detainer can have no broader application than the proceeding itself, and, latter being confined solely to therein cannot be extended to include other the one issue of possession, judgments rendered matters.

3. Judgment 747(6)-Judgment in unlawful.

fendant's motion for a new trial his counsel, 2. Judgment 747 (6)-Judgment rendered in presented and read in evidence an affidavit made by a woman who had served as a juror in the trial of an earlier liquor case, in which Fitch was a witness. She therein stated that during the progress of the trial of such earlier case the juror in question in the instant case, referring to the witness Fitch, said that "he thought the witness was a hard case, that he would hang a man for 25 cents" and that "he would not convict a man on Mr. Fitch's testimony." It appears that, after the jury had been sworn in the instant case, she related the foregoing facts to the trial judge. Thereafter, at the next adjournment of court, the trial judge said: "Certain matters having come to the attention of the court that require investigation, we will take a recess until 1:30 o'clock this afternoon."

detainer held not bar to action to determine title.

Judgment for defendant in unlawful detainer held not a bar to subsequent action against same defendant to determine title to real property involved in the former action, though same facts were relied on as a defense.

Appeal from Superior Court, Los Angeles County; J. P. Wood, Judge.

Suit by Ruth M. Bekins and others against Ella Smith Trull. From judgment for defendant, plaintiffs appeal, plaintiff I. H. Preston dismissing the appeal as to him. Reversed.

John H. Miller, of San Francisco, and Guy F. Bush, of Los Angeles, for appellants. R. D. McLaughlin and J. B. McLaughlin, both of Los Angeles, for respondent.

CURTIS, J. This action was instituted by the life tenancy of the defendant in a certhe plaintiffs to obtain a decree terminating

There is nothing in the record to indicate that any juror was aware of the communication which had been made to the trial judge, or had any intimation of the nature of the matters referred to by the judge as requiring investigation, or even knew that such matters had any relation to the case on trial. Appellant argues that the statement of the trial judge caused the juror "to depart from his own convictions and bring in a verdict of guilty, when it was not in reality his verdict. He must have recalled then his misconduct regarding" the earlier case. It is impossible to discover in the facts stated any logical basis for appellant's conclusions. If plaintiff Ruth M. Bekins, and to have it the juror was biased, his bias was against further decreed that the said Ruth M. Bekins the prosecution and in favor of the defend-held the title to said real property in trust Had counsel for defendant known of the juror's prejudice against the witness for the prosecution, it is highly improbable that any challenge would have been interposed on behalf of defendant. The motion for a new trial was properly denied.

ant.

The judgment and the order are affirmed.

We concur: PLUMMER, J.; HART, J.

the legal title to which stood in the name of

tain lot and two-story house erected thereon,

for the plaintiffs Martin Bekins and I. H. Preston, in the proportion of an undivided seven-eights to said Martin Bekins and an undivided one-eighth to said I. H. Preston, and that the defendant be required to vacate and deliver up the possession of said premises to the plaintiffs. It was alleged in the complaint that defendant had violated and 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 action was tried upon plaintiffs' fifth amended and supplemented complaint and defendant's answer thereto. The complaint was not verified, and the answer contained, besides a general denial, four separate and affirmative defenses. The first of these, alleging the nonjoinder of defendant's husband as a party defendant in said action, is not involved in this appeal. In the second affirmative defense defendant alleged that the plaintiff Ruth General rule that judgment in a former action 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.

BEKINS et al. v. TRULL. (Civ. 4280.) (District Court of Appeal, Second District, Division 1, California. Sept. 27, 1924. Hearing Denied by Supreme Court Nov. 21, 1924.)

1. Judgment 747 (6)-General rule that defense determined in prior action is bar to second action held not applicable to judgment

In unlawful detainer.

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the city of Los Angeles; that the plaintiffs

(230 P.)

fendant upon her said plea of estoppel, and rendered judgment in her favor. By said judgment it was decreed that plaintiffs take nothing by said action; that plaintiff Ruth M. Bekins holds the legal title to said real property in trust for the defendant and not otherwise; that the defendant is the rightful and equitable owner in fee of the real property described in the complaint; that Ruth M. Bekins execute and deliver to defendant a good and sufficient deed of conveyance of

fendant to said real property be quieted against plaintiffs and each of them. From this judgment plaintiffs have appealed, but, since the perfection of said appeal the said I. H. Preston has dismissed said appeal in so far as the same applies to him.

Martin Bekins and I. H. Preston professed | consent, the court found in favor of the deto be greatly interested in the work being done by defendant, and to aid and assist her in carrying on said work they purchased said real property for the defendant, and induced her to take possession thereof, and to erect a chapel thereon for the purpose of conducting religious services; that, induced wholly by said promises and representations that they had purchased said property for defendant, she moved thereon, and expended various sums of money in the erection of said chapel and in the improvement and repair | said real property; and that the title of deof the dwelling house thereon; that said real property prior to its purchase by the said Martin Bekins and I. H. Preston, stood in the name of Emil Schultz and wife, who were the owners in fee thereof, and that on or about the 20th day of October, 1913, the said Martin Bekins and I. H. Preston, for the sole use and benefit of the defendant, paid to the said Emil Schultz and wife the sum of $4,000, the purchase price and consideration therefor in full, and thereupon said Emil Schultz and wife, by grant deed, for the purchase price and consideration so paid by them for defendant, conveyed said real property to said Ruth M. Bekins; and that said Ruth M. Bekins has ever since held and still holds the naked title to said property as trustee for said defendant. Defendant then proceeded to allege in her third affirmative defense that on December 5, 1916, the plaintiffs, through the said plaintiff Ruth M. Bekins, instituted an action against said defendant to recover possession of said real property; that defendant filed an answer

to plaintiff's complaint therein, in which defendant alleged, by way of an affirmative defense, the same facts as are contained in her second affirmative defense herein; and that thereafter, on the trial of said action, the court found all of the allegations of the complaint of plaintiff in said action untrue, and all of the allegations of the answer of defendant therein to be true, and rendered judgment in favor of the defendant and against the plaintiff therein. In her fourth affirmative defense in the present action defendant pleads that the plaintiffs are estopped by the judgment rendered in the former action from disputing any of the allegations of fact contained in defendant's affirmative defense, and which were found by the court to be true, and from introducing any evidence in opposition or contrary to said facts, or any of them.

Upon the trial of the present action, and upon the motion of the defendant, the defense of estoppel interposed by the defendant was first considered by the court, and, after the admission of the judgment roll and files in the former action, and the stipulation of the parties that the first action was prosecuted by the plaintiff Ruth M. Bekins for and in behalf of all the plaintiffs in the 'present action, and with their knowledge and

There were two trials of said former action. The first resulted in a judgment in favor of plaintiff Ruth M. Bekins, but on appeal this court reversed said judgment, on the ground that the undisputed evidence of the plaintiff showed that the defendant was vested with a life estate in said real property, and that "it may be that the condition upon which defendant's right to the possession of the property depends has been broken, and that the plaintiff is entitled to have the estate of the defendant declared forfeited. If so, it must be done in some proceeding other than that brought to secure the summary remedy afforded by the Code to a landlord whose tenant has breached some condition of his lease." 37 Cal. App. 222, 174 P. 96. After the reversal of said judgment the action was again set for trial. The plaintiff, although notified of the day of trial, was not present. The trial referred to by the defendant in her third affirmative defense was the second trial of said action, and the judgment which is herein pleaded as an estoppel was the judgment rendered at said second trial.

[1-3] The only question involved in this appeal is: Were the plaintiffs estopped in the present action from proving their case by the judgment rendered in the former action? The first action, as we have already seen, was an action of unlawful detainer, and the present action is one in the nature of an action to quiet title. In the first action the sole question in issue was the right to the possession of the real property described in the complaint. Felton v. Millard, 81 Cal. 540, 21 P. 533, 22 P. 750; Knowles v. Murphy, 107 Cal. 107, 40 P. 111. In the present action the question in issue is the title to said real property. It has been repeatedly held in this state that a judgment in an action of unlawful detainer is not a bar to an action to determine the title to the real property involved in the former action. Martin v. Bartmus, 189 Cal. 87-91, 207 P. 550; Fish v. Benson, 71 Cal. 428.

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.

lants were proceeding was to afford a summary and adequate remedy for obtaining possession of premises withheld by tenants in violation of the covenants of their lease, and this object would be entirely frustrated if tenants were permitted to interpose every defense usual or permissible in ordinary actions at law." Phillips v. Port Townsend Lodge, 8 Wash. 529, 36 Pac. 476; Arnold v. Krigbaum, supra.

"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 estoppel as to the latter." 15 Cal. Jur. § 206. "Judgments in actions of forcible entry and unlawful detainer are, to the same extent as judgments in other actions, conclusive upon the questions within the issues and determined by the court or confessed by the parties. The title to the property is never in issue in these actions, and therefore, the judgment, whether for plaintiff or defendant, cannot affect the title." Freeman on Judgments [4th Ed.] § 302a.

Being thus limited in its scope and purpose, a judgment rendered in such an action can have no broader application than the proceeding itself, and, the latter being confined solely to the one issue of possession, judgments rendered therein cannot be extended to include other matters. Perhaps no better illustration, indicating the narrow limits to which an action of unlawful detainer is confined, can be found than the very case for Bekins v. Smith, 37 Cal. App. 222, 174 P. 96. It was there held, as we have already seen, that the evidence showed that the defendant therein had an estate for life in the real property in controversy, but, if she had broken the conditions upon which her right of possession was held, and thereby forfeited her estate, these matters could not be litigated in an action of unlawful detainer, and the court in express language stated that it would be necessary for the plaintiff in said action to institute some different proceeding if she proposed to show a breach of this condition. We might say in passing that it would indeed be a strange anomaly in the law for this court, after de

Respondent relies upon the cases of Williams v. MacDonald, 180 Cal. 546, 182 P. 29, and Estate of Clark, 190 Cal. 354, 212 P. 622. These cases hold in effect that, where the judgment roll in the first action shows that a defense, good as to the second action, was passed upon by the court in the first action, and there determined in favor of one of the parties and against the other, the judgment in the first action is a final and conclusive defense to the second action. This is undoubtedly the general rule, but evidently a distinction is made regarding a judgment of unlawful detainer. The reason for this distinction appears to be that in an action of unlawful detainer the court is without jurisdiction to try any issue, except that involving the possession of real property, and therefore any judgment rendered by such a court in such an action cannot affect the title to said real property. Nor is any finding of fact by the court, rendering judgment in the action for the possession of the real property, res adjudicata between the parties in a subsequent proceeding wherein the is-ciding in the former case of Bekins v. Smith sue involved is the title to said real property. The action of unlawful detainer is a statutory proceeding, and is governed solely by the provision of the statute creating it. It was designed for the purpose of providing a speedy and summary remedy to determine the right to the possession of real property in the cases specified in the statute. It cannot be used for any other purpose than those enumerated therein. No cross-complaint or counterclaim is permitted in such an action. Chase v. Peters, 37 Cal. App. 358, 174 P. 116; Arnold v. Krigbaum, 169 Cal. 143, 146 P. 423, Ann. Cas. 1916D, 370. No issue can be raised in such action regarding the rights of the parties to the real property save the sin

that plaintiff could not litigate the validity of the title to the real property in said action, now to hold that plaintiffs are estopped by a subsequent judgment, rendered by the trial court in said former action, from litigating the very issue which the court held could not be considered in the previous action. We therefore conclude that the plaintiffs in this action were not estopped by the judgment in the former action from proving the allegations of their complaint.

The judgment in said action in favor of defendant and against plaintiff's Ruth M. Bekins and Martin Bekins is reversed.

We concur:

CONREY, P. J.; HOUSER, J.

(230 P.)

POWELL et al. v. MOHR et al. (Civ. 3955.)

(District Court of Appeal, Second District, Division 2. California. Sept. 15, 1924.)

1. Landlord and tenant

78(1)-Evidence held to sustain finding that assignor of lease fraudulently misrepresented lease good and transferable.

In action by assignee of lease against assignor to recover consideration for assignment on ground of fraudulent misrepresentations, evidence that assignor at time of making assignment knew that lessor had instituted suit to dispossess her for nonpayment of rent, held to sustain finding that assignor had fraudulently misrepresented that she had a good and trans

ferable lease.

said premises, nor to assign or transfer this
lease
without the written consent"

of the lessor. The instrument also contained
a clause reciting that:

"It is hereby agreed by and between the parties hereto, that in the event that the (lessee) desires to transfer this lease and the (lessor) shall fail, or refuse to give his consent to the transfer, then each party hereto shall appoint one person and the two so appointed shall appoint a third party and whatever decision these three come to shall be final."

Thereafter, by indorsements on the lease, Jaus assigned it to two parties of the name of Hoff, the Hoffs assigned it to Annette Mohr, and Mohr assigned it to Charles H. Powell and Maud Humfreville. Each of 2. Landlord and tenant 78(1)—Arbitration these successive assignees, or groups of asprovision 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 asor 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 340(1)-Proof of entry and no- and he was made a defendant under allegatice 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."

Where judgment was offered in evidence two years after its date and certificate of clerk on judgment roll recited that it was true copy of judgment and recorded, etc., proof of entry and notice of entry were not necessary, requirements of Code Civ. Proc. § 659, not affecting evidentiary value of judgment in another action, nor is notice of entry part of "judicial record" which under section 1905 may be proved by production of original or copy thereof, and section 670, specifying papers constituting "judgment roll," which is equivalent of "judicial record," does not include notice of entry of judgment.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Judgment Roll; Judicial Record.]

fendants for the amount prayed. Defendant Mohr alone appeals.

[1] The trial court found that Erickson and appellant represented to respondents that appellant was the owner of the lease and could sell it. It was specially found as to appellant that she represented to respondents that she "was ready and able to transfer" the lease "free and clear of any encumbrance and without any let or hindrance to the calm, quiet and peaceful enjoyment thereof." was also found that all these representations were false. Appellant contends that the findings mentioned were not supported by the evidence. None of the successive assignments of the lease was consented to by Haas before it was made, but he in effect

It

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. Appellant contends that this circumstance deagainst Annette Mohr and another. From judgment for plaintiffs, named defendant ap- lease requiring a consent of the lessor to asstroyed the legal effect of the clause of the peals. Affirmed.

signments, although we need not decide

Benjamin W. Shipman, of Los Angeles, whether it so operated, for respondents asfor appellant.

C. L. Belt, of Los Angeles (A. E. Hamilton, of Los Angeles, of counsel), for respondents.

WORKS, J. One Beach, whose successor in interest was one Haas, demised to one Jaus a certain apartment house under a written lease which contained a provision that the lessee was "not to sublet the whole of

sume the correctness of appellant's contention for the sake of argument and justify the findings as to misrepresentation upon other grounds. These grounds rest upon the following evidence: At the time appellant made the assignment to respondents there was a controversy between her and Haas upon the question whether she was in default in the payment of certain installments of her

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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