Nathan v. Locke

THE COURT.

The judgment is affirmed for the reasons given in our former opinion filed April 28, 1930, and reported in 287 Pac. 550. The motion to file certain documentary evidence is granted.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 8, 1930, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 2, 1930.

The following is the opinion of April 28, 1930, rendered in the above-entitled cause:

NOURSE, P. J.

Plaintiff sued for contribution against each of the defendants upon a final judgment which had been rendered against the three. Plaintiff had a several judgment against each of the defendants, from which they join in an appeal upon typewritten transcripts.

The three parties were co-owners of real property situated in Mendocino County. Plaintiff held an undivided one-half interest and each of the defendants held an undivided one-quarter interest in the property. The three owners joined in a written lease to one Miller on May 16, 1922. In September, 1922, Miller notified the plaintiff herein that he would be unable to pay the balance of the rent due in October of that year and offered to give her a note for it. Such a note was taken by the plaintiff and handed to the defendants herein, who declined to accept the note unless it was secured by a mortgage on the fall crops. Demand was thereupon made upon the lessee that such a mortgage be given, but the note was not returned to him. Thereafter a controversy arose between the lessors and the lessee as to the right of the latter to cut and remove wood

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from the premises, and as a result of this controversy and the matter of the unsecured note notice was given to the lessee to deliver possession of the property to an agent of the lessors, and about the same time suit was commenced against the lessee on account of the October installment of rent, in which wood which he had cut upon the premises was attached. The lessee vacated the premises a few days later and thereupon brought an action for damages against the three lessors. The cause was tried before a jury in Mendocino County and resulted in a verdict for the lessee in the sum of $2,500. This judgment was appealed to the District Court of Appeal and affirmed. Thereafter, being threatened with execution upon her property located in Mendocino County, the plaintiff in this action paid the judgment, with the costs and attorneys’ fees incurred in defending the action, amounting to something over $3,500. She then commenced this proceeding demanding from her colessors contribution to her of their proportion of the amount paid, based upon their individual interest in the property which was under lease.