Eistrat v. Brush Industrial Lumber Co.

FOX, J.

Plaintiff brought this action to recover damages for the'conversion of certain lumber and to vacate a judgment in favor of defendants in an action between the same parties involving the same facts. The prior judgment was affirmed by this court in 124 Cal.App.2d 42

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[268 P.2d 181]

(Eistrat

v.

Brush Industrial Lbr. Co.).

[629]

Defendants’ demurrer to plaintiff’s third amended complaint was sustained without leave to amend. Plaintiff appeals from the ensuing judgment of dismissal.

In the instant matter, as in the prior case, plaintiff is seeking damages for the conversion of lumber that he claims belonged to him. He is, of course, met at the outset with the principle of res judicata. In order, however, to avoid its application, plaintiff asserts that the prior judgment was the result of extrinsic fraud or mistake.

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In support of his contention he points to certain allegations in his third amended complaint: that at the trial he requested his attorney to (1) offer available evidence that defendants had not paid anyone for most of plaintiff’s lumber; (2) offer in evidence the depositions of R P. Kratz, vice-president of defendant corporation, which showed defendants’ defense to be sham and frivolous; (3) offer evidence that a judgment for defendants would be an unjust enrichment of them and a gross miscarriage of justice; (4) offer in evidence written opinion of United States District Court in a bankruptcy proceeding involving one of the vendees of the lumber (see

Eistrat

v.

Brush Industrial Lbr. Co., supra,

pp. 43, 44 and 45) to the effect that all lumber taken and carried away from plaintiff's land to defendants was the property of plaintiff and his wife ;

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