Whitney v. City & County of San Franisco

[364]

WARD, J.

Plaintiff appeals from a judgment involving the refusal of the city and county of San Francisco to rent or lease to the California State Committee of the Communist Party of the United States of America any part of the Civic Auditorium in the city and county of San Francisco, for the purpose of holding public meetings.

The complaint alleges that plaintiff is a member ‘ ‘ and now is the chairman of the California State Committee of the Communist Party of the United States of America”; that the principal office of said committee is the city and county of San Francisco; that the Communist Party of the United States is a duly and lawfully constituted political party of the United States of America, and that said committee is the duly, regularly and lawfully constituted state committee of that party. The complaint further alleges: “That the said Communist Party of the United States of America has for many years last past participated in the national elections of the United States; and has for many years last past and presently does participate, in the California State elections and in the municipal elections of the said city and county of San Francisco; and that said Communist Party of the United States of America is composed of citizens and electors of the United States and of the State of California and of the city and county of San Francisco.”

As a separate and affirmative defense the answer alleged that in a prior ease for the same cause of action, wherein Oleta O’Connor was plaintiff, a judgment was duly made and given in favor of defendants. Various issues were presented by the pleadings but, under the provisions of Code of Civil Procedure, section 597, defendant, before the trial of any other issues elected to proceed upon the special defense that the action was barred by “a prior judgment and previous adjudication. ’ ’

On the separate trial upon the special defense of res judicata, the respondents rested after presentation of the judgment roll in the O’Connor case, and the court found: “That this action is barred by said prior judgment. That defendants have judgment herein as against plaintiff. That no trial of other issues in the action shall be had. That have judgment against plaintiff for their costs,” etc. This finding was based solely upon the pleadings in the present case and the record in the O’Connor case. In the latter case, “having heard the testimony and having examined the proofs offered,” the court found: “That said Communist