Baker v. Eilers Music Co.

HENSHAW, J.

In the present action plaintiff, as landlord, sued defendant as his tenant for the recovery of rent

[658]

due under the written lease between the parties. A previous action to recover another monthly installment of this rent had been brought, tried, and determined in favor of the defendant in the superior court of the county of Los Angeles. The defense in that action was the eviction of the defendant from a portion of the demised premises, the refusal of the landlord to restore that portion of the demised premises on demand, the rescission of defendant of the contract of lease for this reason, and its surrender of possession. That case so tried resulted in a judgment in favor of the defendant, from which judgment the plaintiff appealed. Upon appeal the judgment was affirmed.

(Baker

v.

Eilers Music Co.,

26 Cal. App. 371, [146 Pac. 1056].) In the present action defendant pleaded in abatement the former trial and the decision of the court thereon; pleaded the judgment in its favor upon the same cause of action; the appeal from that judgment and the pendency of the appeal, and prayed an abatement, and therefore necessarily the postponement of the trial of this action on that ground. On the trial defendant offered the judgment-roll in the former action and evidence of the pendency of the appeal, and all this evidence by the court was’ rejected. In so rejecting it the court fell into serious and unmistakable error. Plaintiff’s former action sought to impose a liability upon defendant for rent due under his written lease. The defense was nonliability owing to a rescission of the lease and a determination of the relationship of landlord and tenant. These issues lay at the foundation of every action which plaintiff could bring to recover rent. Once having had the issues litigated and determined, it was not open to him to have them redetermined in successive actions. If the judgment in the first action in which these issues were tried had become final, that judgment could be interposed as an estoppel. If the operation of the judgment was suspended by appeal, it could still be interposed in abatement of a second trial of the same issues. The argument of counsel to the effect that “while the same parties are parties plaintiff and defendant in both ■ actions and the same lease is involved in both actions, yet this action is for a different installment of the rent and therefore the actions are not the same,” is wholly specious and unsound. The cases upon which respondent relies are cases where it was sought to use a judgment the operation of which was