Pomper v. Superior Court

WILBUR, C. J.

This is a proceeding on

certiorari

to review an order of the respondent court granting a new trial in the action of

Pomper

v.

Beknke.

The application is based upon the claim that the judgment rendered in the action, upon which the motion for a new trial was based, was an interlocutory and not a final judgment, and for that reason it is claimed the court had no jurisdiction to grant the motion for a new trial, which is only appropriate, it is claimed, after the entry of the final judgment in the action. The respondent claims that the judgment rendered by the trial court was a final judgment, and that

[495]

the motion for new trial having been made after due notice and within due time, was within the jurisdiction of the trial court.

It appears from the record certified to this court that the decision in

Pomper

v.

Behnke

turned upon the effect of a deed executed by Fritz Pomper to his wife, Emilia Pomper. The difficulty arises from the fact that Fritz Pomper on September 25, 1881, at Chemnitz, Germany, married a woman named Emilia Lenk; on August 26, 1896, at Chicago, Fritz Pomper, with due formalities, married Emilia Lenk, another woman of the same name as his first wife. Thereafter he lived with the second Emilia Lenk, and on September 20, 1915, executed and acknowledged a deed of gift to the property involved in this action “to Emilia Pomper, my wife.” In June, 1918, Emilia Pomper of Los Angeles (the second wife) conveyed the property in question to defendant Behnke, who thereafter conveyed it to the defendant Lena Heinze. The action of

Pomper

v.

Behnke

was begun September 29, 1920, by the first Emilia Pomper to quiet the plaintiff’s title to the land in question and to recover the rents, issues, and profits thereof. The trial court rendered a judgment which was entitled “Interlocutory Judgment and Decree,” declaring that the legal title to the property in question was in Emilia Pomper, the first wife, although it was apparent that the deed was delivered to the second Emilia Pomper, who was living with Fritz Pomper upon the property in question, by whom it was occupied for about eighteen years as the home of the reputed husband and wife, the first Emilia Pomper having during all this period resided in Germany. The so-called interlocutory judgment expressly reserved for future determination the question of the amount of the rents, issues, and profits to be paid by the respective defendants to the plaintiff therein because of the use and occupation of the premises during the eighteen years preceding the commencement of the action, and also from the date of the action to the rendition of the final decree.