SCHAUER, J. I dissent. The record shows that after the unlawful detainer judgment was rendered in favor of plaintiffs-petitioners and against defendant-respondent (hereinafter called plaintiffs and defendant, respectively) followed by defendant’s surrender of possession of the premises, the rights of third parties who purchased the premises intervened. It is apparent that a complete determination of the controversy cannot be had without the bringing in of such third parties; their presence in the proceeding is jurisdictional (see authorities cited, infra). Consequently, the judgment of the superior court affirming on certiorari the order of the trial court that the defendant be placed again in physical possession of the premises, necessarily ousting the third parties, should be reversed.
The record discloses the chronological order of the material events in this controversy as follows:
October 8, 1943—Plaintiffs purchased the property in question, which at that time was being occupied by defendant as a month-to-month tenant.
October 13, 1943—Plaintiffs obtained from the Office of Price Administration a certificate authorizing eviction of defendant at the expiration of three months from that date, in order that plaintiffs might occupy the premises.
September 28, 1944—Plaintiffs gave notice terminating the tenancy and demanding that on November 1, 1944, defendant quit the premises. Defendant failed to do so.
November 16, 1944—Plaintiffs filed their complaint in unlawful detainer against defendant.
November 18, 1944—Defendant filed her answer to the complaint.
[794]November 30, 1944—Respondent municipal court rendered judgment in plaintiffs’ favor for possession of the premises, damages, and costs. On application of defendant, execution was stayed as to possession, to and including December 27, 1944.
December 26, 1944—Defendant vacated the premises.
January 10, 1945—Plaintiffs took possession, and thereafter had the premises redecorated, repaired and renovated.
January 25, 1945—Plaintiffs moved into the premises.
February 9, 1945—Defendant filed notice of appeal from the judgment.
August, 1945—Plaintiffs “negotiated for the sale of the premises,” and thereafter delivered possession to the purchaser.
October, 1945—The sale of the premises “was consummated.”
October 11, 1945—The appellate department of the superior court reversed the unlawful detainer judgment in plaintiffs’ favor and remanded the cause for a new trial, on the technical ground that the notice terminating tenancy was not properly served.
October 15, 1945—Plaintiffs filed a notice of motion to dismiss the action in the municipal court.
October 19, 1945—Remittitur filed on the appeal to superior court.
October 22, 1945—Plaintiffs’ motion to dismiss came on for hearing and was continued by the court because the files and papers in the action had not yet been returned to the municipal court from the appellate department of the superior court.
October 22, 1945—Plaintiffs, relying upon the provisions of subdivision 1 of section 581 of the Code of Civil Procedure, filed with the clerk of the municipal court their request to dismiss the action. The clerk entered a dismissal.
October 22, 1945—Subsequent to entry of dismissal, defendant filed a notice of motion “for an Order placing her in actual physical possession of the premises,” by reason of the reversal of the unlawful detainer judgment. Concurrently, without first seeking leave of court, she filed a supplemental answer asking the same relief.
November 19, 1945—Defendant’s motion for restitution of the premises was granted by the court, with execution stayed until November 26, 1945. Plaintiffs’ motion to dismiss (filed [795]October 15) was denied by the court with a minute order notation: “dismissal on file effective.”
November 21, 1945—Plaintiffs filed notice of motion to vacate the order of restitution and reconsider the motion to dismiss; and also filed supporting affidavits in which, for the first time, the fact was brought to the attention of the court that some weeks previously plaintiffs had sold the premises and delivered possession to the purchaser.
November 23, 1945—Court denied the above motion, and extended the stay of execution on the order of restitution to December 19, 1945.
November 27, 1945—Plaintiffs filed petition for certiorari in the superior court, challenging jurisdiction of municipal court to make the order of restitution.
March 13, 1946—Superior court affirmed on certiorari the order of restitution.
March 20, 1946—Plaintiffs filed notice of appeal from the judgment of the superior court in the certiorari proceeding.
Plaintiff Edward F. Schubert states, in his affidavit filed in support of plaintiffs’ motion to vacate the order of restitution of the premises to defendant, that “in August, 1945, plaintiffs . . . negotiated for the sale of the premises. . . . In October, 1945, and prior to the hearing of the Motion to Dismiss . . . the sale of said premises was consummated and plaintiffs are no longer the owners of said premises and would be unable to deliver the same to defendant even if requested to do so.
“Plaintiffs lived in said premises during the time required by the OPA before selling said property and the purchaser has taken the property in good faith and without notice of the right as claimed by defendant to possession of the property.
“At the time the present owner negotiated for the purchase of the premises plaintiffs were in possession of the same and shortly after the escrow was opened for the sale of said property the present owner was placed in possession of the premises and has, ever since, been occupying and is now occupying the same as her home and dwelling.”
Plaintiffs’ attorney stated, also by affidavit, that “At the time of the original hearing [of defendant’s motion for restitution and of plaintiffs’ motion to dismiss] it was not shown to the Court . . . that it would be impossible to com[796]ply with the order of restitution for the reason that the plaintiffs were no longer in possession of . . . [the premises], having sold same in good faith to a third person after defendant had voluntarily left the premises in December of 1944, which was not brought to the attention of the Court for the reason that these facts were deemed immaterial on the argument on motion to dismiss, the arguments being directed to the law in connection with the rights to dismiss the action and for the further reason that plaintiffs and their counsel understood and believed that the dismissal filed in said action would appear of record before the filing of the Supplemental Answer. ’ ’
It thus appears that at the time of the hearing on plaintiffs’ motion to vacate the order of restitution the fact that the rights of third parties in possession of the premises had intervened was affirmatively brought to the attention of the court. The fact was not disputed. Nevertheless, without the bringing in of such third parties the court denied the motion and the superior court affirmed the order of restitution. In my opinion, the provisions of section 389 of the Code of Civil Procedure require that the third parties be brought in. That section provides, so far as here material, that:
“The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in. . . .”
That bona fide purchasers of the property have rights which are entitled to protection is established by an abundance of authority. At page 1544 of 5 Corpus Juris Secundum it is stated that “good faith purchasers of property, which has been taken under judgment, usually cannot be compelled to make restitution upon subsequent reversal or modification.” (See, also, 3 Am.Jur. 744, § 1248.) Even a purchaser at an execution sale may not be required to restore the property upon reversal of the judgment. The rule in such a case is set forth as follows at page 312, section 74, of Restatement of the Law of Restitution: “A person, other than the judgment creditor or his attorney, who purchases at a valid execution sale upon a judgment which is not void but which is subsequently reversed is entitled to retain the subject matter if, before reversal, he has obtained the legal [797]title and has paid value therefor. . . . Since the sale was lawful he is protected as a bona fide purchaser. . . . A person is not prevented from being a bona fide purchaser by the fact that he has knowledge that an appeal is pending or even that he has knowledge of the grounds for appeal. . . .” (Cf. Reynolds v. Harris (1860), 14 Cal. 667, 679 [76 Am.Dec. 459]; Polack v. Shafer (1873), 46 Cal. 270, 276; Cowdery v. London etc. Bank (1903), 139 Cal. 298, 304-305 [73 P. 196, 96 Am.St.Rep. 115].) And at page 692, section 172, of the same work, appears the statement that “The principle that a person who innocently has acquired the title to property for which he has paid value is under no duty to restore it to one who would be entitled to reclaim it if he had not been innocent or had not paid value therefor, is of wide application, being a limitation upon the principle that a person who has been wrongfully deprived of his property is entitled to restitution. The question in such cases is which of two innocent persons should suffer a loss which must be borne by one of them. The principle which is applied by courts of equity is that they will not throw the loss upon a person who has innocently acquired title to property for value.”
The same principle has previously been applied in this state where, as here, a judgment of eviction was reversed. In Kennedy v. Hamer (1861), 19 Cal. 374, possession of real estate had been taken from Kennedy (as defendant) after a writ of possession had issued upon a judgment of eviction. The plaintiff in the eviction suit then leased the land to Hamer. Subsequently, the judgment of eviction was reversed, and Kennedy brought an independent action seeking restitution. In affirming judgment in favor of Hamer, this court observed (p. 387-388 of 19 Cal.), “[I]t seems to us that the proceeding cannot be maintained as against the lessee, who, so far as appears, had no connection with the original tortious act [ejecting Kennedy] . . . Hamer was not a trespasser at all. For all that appears, he leased the premises from the lawful owner of them, that owner having a right of entry, though, as we might concede, no right to dispossess Kennedy by force. It would be very unreasonable to hold that Hamer should be held to a quasi criminal responsibility under these circumstances.”
Despite the fact that the interest of allegedly bona fide purchasers of the premises was brought to the attention of [798]the court, no action was taken to bring them in in order that “a complete determination of the controversy” could be had. As declared in Ambassador Petroleum Co. v. Superior Court (1930), 208 Cal. 667,, 671 [284 P. 445], “when the trial court finds, or the record indisputably shows, that a ‘ complete determination of the controversy cannot be had without the presence of other parties, ’ such parties become necessary and indispensable parties and the section is mandatory and the question then becomes one of jurisdiction in that the court may not.proceed without bringing them in.” (See, also, 20 Cal.Jur. 534, 21 Cal.Jur. 82-83, and cases there cited.) Thus, the jurisdictional writ of prohibition will issue to prevent the court from proceeding until such necessary parties are brought in. (Ambassador Petroleum Co. v. Superior Court (1930), supra; Bank of California v. Superior Court (1940), 16 Cal.2d 516, 523 [106 P.2d 879] ; Ash v, Superior Court (1917), 33 Cal.App. 800 [166 P. 841] ; Morrow v. Superior Court (1935), 9 Cal.App.2d 16, 26 [48 P.2d 188, 50 P.2d 66] ; Bayle-Lacoste & Co. v. Superior Court (1941), 46 Cal.App.2d 636, 646 [116 P.2d 458].) And the “objection that an indispensable party has been omitted may be raised at any time by the trial or appellate court of its own motion if the parties fail to make the objection. The requirement that indispensable parties be before the court is mandatory. [Citations.]” (Hartman Ranch Co. v. Associated Oil Co. (1937), 10 Cal.2d 232, 265 [73 P.2d 1163].)
Obviously, no binding adjudication can be reached concerning possession of property without the bringing in of those who are actually in possession under a claim of bona fide ownership, and certainly bona fide purchasers in actual possession should not be put out of possession under a writ issued in proceedings to which they are not parties. Consequently, it is apparent that such purchasers are indispensable parties to this proceeding, and that inasmuch as that fact appears of record this court in. affirming an order or judgment that possession be restored to another without the bringing in of such parties and the protection of their rights approves the violation by the trial court of a mandatory duty to bring in the purchasers.
The judgment of the superior court should be reversed and the cause remanded with directions that the court enter its order annulling the order of the municipal court.