Martin v. Molera

McLAUGHLIN, J.

It is alleged in the complaint herein that on a specified date the plaintiff was the owner, seised in fee and in the possession of a designated tract of land, and at the time the action was commenced he was the owner and entitled to the possession of said land. This is followed by an averment that on the date mentioned the defendant entered upon and ousted and ejected plaintiff, to his damage in the sum of $1,000. The prayer demands restitution of the premises with damages in the sum stated. The defendant filed an answer denying each of the allegations of the complaint and pleading a judgment rendered in an action between plaintiff and defendant’s predecessor in interest, involving the title and possession of the land here in controversy, which judgment was affirmed by the supreme court (see

De Molera

v.

Martin,

120 Cal. 544, [52 Pac. 825]). In connection with this special defense it was alleged that in the complaint in the former action one of the calls in the description of the land read “South 82 degrees West,

3.35

chains

[300]

to station,” and by reason of a clerical misprision and mistake this call read “South 82 degrees West 5.35 chains to a station,” as inserted in the judgment pleaded. Immediately following this, in a portion of the pleading designated a cross-complaint, the defendant pleaded the facts touching the former action between plaintiff and defendant’s grantor, and inserted a copy of the judgment in said former action. The above-mentioned mistake in one of the courses and distances as inserted in the judgment was then set forth, and this was followed by three paragraphs specifically fixing the starting point in the description of the tract of land involved in the former judgment, and more particularly describing one of the boundaries of the tract with reference to the old channel of the Salinas river and the cabin of Buckskin Joe, which was destroyed by fire .after the commencement of said action. The cross-complaint further contained specific allegations to the effect that the lands described in the complaint herein are a part of the lands involved in the former action and that the present action is contrary to equity and good conscience, and is intended to harass, vex and annoy defendant by compelling him to relitigate the same questions which were tried and determined in the action of