Comer v. Associated Almond Growers

STURTEVANT, J.

The plaintiffs commenced an action to recover a judgment against the defendant for money. Thereafter they filed a second amended complaint. The defendant demurred. Its demurrer was overruled and thereafter it filed an answer which, among other things, pleaded an earlier judgment as a bar. A trial was had in the trial court before the court sitting without a jury. The court made findings in favor of the plaintiffs, and from a judgment entered thereon the defendant has appealed. In their second amended complaint the plaintiffs alleged the corporate capacity of the defendant; that on the first day of November, 1922, the plaintiffs commenced an action, No. 7251,

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records of the county clerk of San Luis Obispo County, in specific performance against the defendant to compel the defendant to execute a deed to certain lands, and if it be found that defendant was unable to convey said premises, then to recover judgment in the sum of $15,000, which sum was alleged to be the value of the premises in controversy at the time of the commencement of the action; that the action came on for trial; that the plaintiffs offered to prove by Frank W. Aston that at the time action No. 7251 was commenced, and at the time the action was on trial, Frank W. Aston was the owner of the premises. Objection was made that the evidence was inadmissible because not within the issues, and the objection was sustained; that during the course of the trial the court inquired of defendant’s counsel if defendant was able to convey the premises in the event that the court should decide in favor of the plaintiffs; that counsel answered the question in the affirmative and the trial continued;, that thereafter the court made findings in favor of the plaintiffs and, among other things, found that the plaintiffs had paid the defendant $13,000 and that plaintiffs were entitled to a conveyance; that thereafter a decree was entered directing. defendant forthwith to execute a conveyance and to deliver the conveyance, together with a certificate of title, showing the premises to be free and clear of encumbrances and liens; that for the purpose of carrying said judgment into effect the court appointed a commissioner; that thereafter plaintiffs served a copy of judgment and a notice of entry on the defendant; that the judgment has never been appealed from nor vacated and has become a final judgment; that the defendant did not execute the conveyance; that the commissioner did execute the conveyance; that at the time the said action No. 7251 was commenced the defendant was not, and is not, the owner of said premises; that the conveyance is void; 'that the plaintiffs have paid the defendant $13,000, no part of which has been returned; that by reason of the representation of defendant’s counsel in open court on the trial of action No. 7251 the plaintiffs and the trial court relied thereon and acted thereon, and that the defendant is estopped from setting up the judgment in action No. 7251 as a bar in this action. The trial court made findings in favor of the plaintiffs on each of the allegations except as follows: “That by