Franklin v. Churchill Co.

WILBUR, J.

[1] This case is a companion case to

Reynolds

v.

Churchill Co., ante,

p. 543, [202 Pac. 865]. The record of the two cases is somewhat different, owing to the fact that in the trial court the attorney representing Franklin claimed throughout the proceedings that the supreme court had definitely determined in

Churchill Co.

v.

Kingsbury,

178 Cal. 554, [174 Pac. 329], that the lands were sovereign lands and that, therefore, neither party had the right to purchase the same from the state of California. His supplemental complaint based upon the judgment of the supreme court in the

mandamus

case of

Churchill Co.

v.

Kingsbury, supra,

was not permitted to be filed. By this supplemental complaint the plaintiff in effect contended that the judgment in the

mandamus

case was conclusive against the defendant and incidentally admitted that it was conclusive against himself. In the latter position he was in error. Acting upon this belief the plaintiff declined to offer any evidence in the- case and contented Jn'-msp.lf with the record he had made by the motion for leave to

[556]

file the supplemental complaint and by other motions and proceedings which need not be specifically pointed out. The judgment of the court being in favor of the Churchill Company, the plaintiff appeals to this court. While the more orderly process was that adopted in

Reynolds

v.