Pacific Coast Law Journal. VOL. 2. JANUARY 25, 1879. No. 22. Current Topics. THE following opinions have been rendered by the Supreme Court since the beginning of the present term-January 13th: Wells vs. Harter, affirmed; Barker vs. Stanford, affirmed; Bacon vs. Robson, affirmed; Stoddart vs. Burge, affirmed; Mahoney vs. Supervisors, intervention dismissed and writ denied; Winter vs. Belmont Mining Company, reversed; People vs. Alvord, affirmed; Pope vs. San Francisco, affirmed; City of San Jose vs. San Jose and Santa Clara R. R. Co., reversed; Hibernia Savings and Loan Society vs. Herbert, reversed; Black vs. Sprague, affirmed; Taylor vs. Brenham, affirmed; McConaghey vs. Lyons, affirmed; Estate of Montgomery, writ dismissed; Diggins vs. Sawyer, affirmed; Ladd vs. Tully, appeal dismissed; Davidson et al. vs. Whalen et al., affirmed; French vs. Halliman, reversed; Hardy vs. McPherson, affirmed. WE are preparing with great care all the decisions by the Supreme Court, without written opinions, filed since our last volume closed. The decisions will never be regarded by the court as authority, but our preparation is made with a different view, and we are convinced that the labor we are bestowing upon them will place them before our subscribers as so many aids and accessories in the compilation of authorities upon kindred subjects. They will appear shortly in a supplement to the JOURNAL. Supreme Court of California. JANUARY TERM. [No. 5,575.] [Filed January 13, 1879.] STODDART, PLAINTIFF AND RESPONDENT, VS. BURGE, DEFENDANT AND APPELLANT. 1. An order dismissing a cross-complaint, and directing a judgment for the plaintiff, can not be reviewed on an appeal from the judgment, in the absence of a bill of exceptions or statement on appeal. 2. In an action brought under Section 738 of the Code of Civil Procedure, to determine an adverse claim to real property, it is not essential that the complaint should aver the plaintiff to be owner in fee, and it will be sufficient if it appears that the plaintiff claims an interest in the land, and that the defendant asserts a claim of title adverse to the plaintiff's claim. 3. In such an action, when the plaintiff claims under a deed from the defendant, absolute in form, it is not bad pleading to state that fact in the complaint. 4. In such a case, if the answer admits the execution and delivery of the deed, but avers that it was intended as a mortgage, the burden of proof is on the defendant to establish that fact. 5. And if the defendant fails to appear at the trial, the court may properly enter a judgment for the plaintiff for want of evidence to support the answer. 6. In such a case it is a misnomer to designate the judgment as a judgment on the pleadings; but having been properly entered, it will not be disturbed because it is called by a wrong name. Appeal from Twelfth District Court, city and county of San Francisco. This is an action brought to determine an adverse claim, or to quiet title to a certain lot of land. The complaint avers ownership in fee and possession in respondent, and also that property was conveyed to respondent by appellant and her husband. The answer denies the averment with respect to ownership in fee; and as to the conveyance, that it was simply a mortgage to secure an advance to appellant's husband. There is also a cross-complaint as to respondent and two other parties. On cause being called for trial, defendant failed to appear. The cross-complaint was ordered to be dismissed, and thereupon counsel for respondent moved for judgment in his favor on the pleadings. Motion granted. Defendant moved to set aside this order dismissing crosscomplaint and diverting judgment. Motion denied. Defendant appealed, but not within the prescribed time. There is no bill of exceptions or statement on appeal. Wm. and Geo. Levitson, attorneys for respondent. The first appeal is taken more than sixty days after order made. (Sec. 939, C. C. P.) The second appeal is not taken within a year after the rendition or entry of judgment. (Code C. P., Sec. 939.) The second appeal is from the judgment, and on this the action of the court in dismissing cross-complaint and ordering judgment can not be reviewed, there being no bill of exceptions or statement on appeal. (46 Cal. 67; 43 Cal. 184; 27 Cal. 108; 36 Cal. 112; 41 Cal. 136.) Want of recitals in a judgment does not affect its validity. (50 Cal. 455.) Henry E. Highton and George R. B. Hayes, counsel for appellant. The answer denies squarely that respondent is the owner in fee. This denial raises a distinct issue. A material allegation in the complaint being thus controverted by the answer, the cause was ripe, and all the respondent could do in the absence of the appellant and his attorney was to "proceed with his case, and take a verdict or judgment," as might be appropriate. (C. C. P., pp. 590–594; 32 Cal. 267; 34 Cal. 46-47; 40 Cal. 443.) CROCKETT, J. The appeal from the order denying the motion to vacate the order dismissing the cross-complaint and to set aside the judgment was not taken in time, and is therefore dismissed. Nor can the order dismissing the cross-complaint, and directing a judgment to be entered for the plaintiff, be reviewed on the appeal from the judgment in the absence of a bill of exceptions or statement on appeal. (Douglas vs. Dakin, 46 Cal. 49.) It appears, however, from a recital in the judgment, that the cause was regularly called for trial, and the defendant failed to appear; whereupon the cross-complaint was dismissed, and thereupon, on motion of the plaintiff, a judgment was rendered in favor of the plaintiff on the pleadings. It is contended for the defendant that the judgment, rendered without proof, can not be supported, because several material averments of the complaint were denied by the answer. Assuming, for the purposes of this decision, that the recitals in the judgment, to the effect that the defendant failed to appear at the trial, and thereupon the order sustaining the motion of the plaintiff for judgment on the pleadings was made, constitutes a material part of the judgment, and can be considered on an appeal from the judgment, we are nevertheless of opinion that the judgment for the plaintiff was properly rendered, and ought not to be disturbed. The action is brought under Section 738 of the Code of Civil Procedure, which provides that-"An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim." The complaint, after averring that the plaintiff is the owner in fee of the premises, proceeds to state how he acquired his right, to-wit: by a deed from the defendant and her husband; and, after alleging the death of the husband, avers that, "notwithstanding the ownership of plaintiff, and the execution of said deed as aforesaid, the defendant sets up, and claims still, some estate or interest in said property above described, adverse to the plaintiff." The statute evidently contemplates that, whether the plaintiff be the owner in fee or not, if the defendant claims an interest adversely to his right or title, such as it is, he is entitled, in an action of this character, to have the adverse claim determined. In this view of the statute, we see no reason why the plaintiff may not state in the complaint the nature of his right or title, against which the defendant asserts an adverse claim. The answer in this case denies that the plaintiff is the owner in fee, and then proceeds to aver that the "deed" under which the plaintiff claims was intended as a mortgage. The answer does not deny that the deed was, in form, an absolute conveyance; but, as we understand it, admits that fact, and rests the defense, solely on the ground that it was intended as a mortgage. This was an affirmative allegation, the burden of proving which was on the defendant; and as she failed to appear at the trial, and to offer evidence in support of the answer, judgment was properly rendered for the plaintiff. It was a misnomer to term it a judgment on the pleadings, when it was, in fact, a judgment for want of evidence on the part of the defendant, to support the affirmative defense set up in the answer. the judgment being proper, it will not be disturbed, because it was called by a wrong name. Judgment affirmed. We concur: NILES, J. MCKINSTRY, J. But [No. 5,605.] [Filed January 13, 1878.] BLACK vs. SPRAGUE. 1. In an action of ejectment against several defendants for fifteen hundred acres of land, the plaintiff derained title under a patent from the United States, issued on a confirmed Mexican grant. One of the defendants disclaimed title as to all the land in controversy, except about one hundred and seven acres, which he claimed under a subsequent patent issued to him as a pre-emptor by the United States. The case was tried with a jury, and at the trial the sole controversy was in respect to the location of one of the lines called for in the plaintiff's patent. The jury returned a verdict in these words: "We find for the plaintiff according to the patent, and assess the damages at five cents per acre per year." Held: That the verdict must receive a reasonable interpretation, and is to be construed in reference to the only controversy which was waged before the jury; and, considered in that light, the verdict is not void for uncertainty. |