Campbell v. Rustigian

THOMPSON, J.

This is a motion on the part of plaintiff to dismiss the purported appeal from an order granting a new trial, on the ground that the notice of appeal is ineffectual because this court lacks jurisdiction since subdivision 2 of section 963 of the Code of Civil Procedure authorizes an appeal “from an order granting a new trial” only in “an action or proceeding where a trial by jury

is a matter of right ”

(Italics ours.) In this suit to quiet title to real property equitable issues only are presented by the pleadings or determined by the findings and judgment. In neither the pleadings, nor the findings nor the judgment does it appear that the plaintiff or any of the defendants held possession of the real property. It is purely an equitable suit to quiet title and not “an action for the recovery of specific real property” contemplated by section 592 of the Code of Civil Procedure.

The complaint merely alleges that the plaintiff acquired title to the real property in question by purchase at a sheriff’s sale under execution pursuant to a judgment which was rendered in favor of the plaintiff in another suit against one of the defendants, Harry M. Rustigian. The last mentioned party filed a disclaimer in this action. The other defendants, Miron Rustigian and Hagoohi Rustigian, who are husband

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and wife, filed an answer merely denying the material allegations of the complaint, and affirmatively asserting that they bought the property from the Security First National Bank of Los Angeles May 4, 1937, and that “these defendants, and each of them, are the sole and absolute owners of said real property. ’ ’ The prayer of the answer merely asks that plaintiff take nothing by his action and that the defendants “go hence with their costs.” Neither the complaint nor the answer alleges possession or asks for possession of the property.

At the time of the trial the defendants demanded and were granted a jury trial, on the theory that its verdict would be advisory only. The cause was fully tried and the jury returned a general verdict “in favor of defendants, Miron Bustigian and Hagoohi Bustigian.” Plaintiff’s motion to set that verdict aside was denied. The court adopted findings in accordance with the verdict favorable to the last mentioned defendants, and rendered judgment accordingly to the effect that neither the plaintiff nor Harry M. Bustigian had any right, title or interest in the real property, and upon the contrary that Miron Bustigian and Hagoohi Bustigian “are the sole, absolute and lawful owners” of the real property in question. The last mentioned defendants were awarded their costs in the sum of $167.85.