Hirschberg v. Goodwin

MARKS, J.

Appellant was the owner of a parcel of land near Azusa in Los Angeles County, California, which will be hereafter referred to as the Azusa property. Respondents were the owners of a house and lot in the city of Venice, now the city of Los Angeles. Appellant instituted her action against respondents to quiet title to a portion of the Azusa property and to recover possession, together with damages for its wrongful detention. It was alleged in her complaint that the reasonable rental value of that portion of the property occupied by respondents was $50 per month for slightly over four months and $100 per month thereafter. This particular allegation was not denied. All of the other material allegations of appellant’s complaint were denied in the answer of respondents. They filed a cross-complaint against appellant seeking to specifically enforce an agreement of exchange of their Venice property for a portion of the Azusa property. The court found against appellant upon her action to quiet title and for recovery of the possession of the Azusa property, and in favor of respondents on their cross-complaint to specifically enforce the contract of exchange. No finding was made upon the allegations of the complaint as to the rental value of respondents’ property occupied by appellant. From a judgment entered in favor of respondents, appellant has- taken this appeal.

It appears from the record that all of appellant’s Azusa property was, at the time of the proposed exchange, encumbered by a deed of trust securing a note in the principal

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sum of $5,500. Upon the oral argument of this ease counsel for appellant called our attention to a stipulation that this deed of trust had been foreclosed and stated that the questions presented on the appeal, except as' to the recovery of the rental value of that portion of the Azusa property occupied by respondents, had become moot as appellant had lost title to and the right of possession of the Azusa property. He requested this court to make additional findings of the rental value of her property involved in this action in accordance with the undenied allegations of her complaint and render judgment in her favor for the rental which he claimed was due from respondents to her, under the powers given this court by the provisions of section 4% of article VI of the Constitution of California and section ,956a of the Code of Civil Procedure and rules of the Supreme Court and the District Courts of Appeal adopted by the Judicial Council under authority of these sections.