Shattuck v. Palmer

JAMES, J.

Plaintiff brought this action in ejectment, the complaint being in the ordinary form appropriate to such a suit. Defendants in their answer first denied that plaintiff was the owner of and entitled to the possession of

[702]

the real estate in controversy, and alleged that they (defendants) were the owners and in possession and were entitled to have the property. As a separate defense, they alleged that prior thereto plaintiff had obtained a judgment quieting title against their grantor, which -judgment, was based upon service of summons by publication and mailing; they particularly alleged that the order for the publication of summons was obtained by fraud, in that by the verified complaint filed by the plaintiff and his proof by affidavit made in support of the order, a false statement was made as to the ownership and title to the property being in the plaintiff in that suit, who is also the plaintiff here. On the ground that the judgment quieting title against their predecessor in interest was obtained by fraud, they asked judgment, and -upon a recitation of the same alleged facts embraced within a cross-complaint, asked for an-affirmative decree in their favor. The plaintiff demurred to the several parts of the answer and cross-complaint on general and on special grounds, and, his demurrer being overruled, made answer to the cross-complaint wherein he admitted the commencement of the quiet-title suit and the filing of the verified complaint and affidavit, and denied that any fraud was committed or that any false statements were made therein. This cause came on for trial and resulted in a verdict of the jury being returned in favor of the defendants, which verdict was rendered under express instructions,of the trial judge. The appeal is from the judgment. '

There is a purported appeal from the order denying a motion for a new trial, but as no appeal was permissible at the time of the making of the order on that motion, it should be and hereby is dismissed.

(Hirsch

v.

All Persons,

173 Cal. 268, [159 Pac. 712].) All of the questions which might properly be included formerly under the appeal from an order denying a motion for a new trial are reviewable on this appeal from the judgment.