Calderwood v. Tevis

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Horton, J. concurring.

This is an action to quiet the title to a lot in the City of San Francisco. It appears, that in March, 1862, the defendant Tevis brought an action against one O’Connell, to recover the possession of these same premises, and at the time of commencing the action, he filed a notice of Us pendens, in accordance with Sec. 27 of the Practice Act. While that action was pending, O’Connell conveyed the premises to plaintiff and one Johnson; and the plaintiff applied for leave to be substituted in that action as defendant in the place [336]of O’Connell, but it was refused by the Court. In August, 1862, Tevis recovered judgment in that action for the restitution of the premises, from which Calderwood caused an appeal to be taken to this Court, which was dismissed on the ground that the sureties in the undertaking, on appeal, had been excepted to, and had not justified according to law. (21 Cal. 512.) Before the judgment in Tevis v. O’Connell was rendered, and while that action was still pending in the District Court, Calderwood commenced the present action, having obtained the possession from O’Connell, alleging that he had the title to the premises, and was in possession; and that Tevis set up a false claim of title thereto. The case came on for trial in December, 1862, and Tevis recovered judgment, from which, and from an order denying a new trial, the plaintiff prosecutes this appeal.

, One of the defendants, Marye, answered the complaint, denying the plaintiff’s title, and averring that the legal title ivas vested in Tevis, and that he, Marye, was the owner of the equitable title to the one-half of the premises. To this answer, the plaintiff demurred, on the ground that it did not state facts sufficient to constitute a defense. It appears that the demurrer had not been submitted or disposed of when the case was tried. The plaintiff contends that it was an irregularity to try the case while this demurrer was pending, such as entitles him to have the judgment set aside and a new trial granted. He refers to the case of Hestres v. Clements (21 Cal. 425), in support of this point. In that case, the demurrer was to the complaint, and the decision was evidently founded upon Sec. 155 of the Practice Act, which provides that “ when there are issues both of law and fact to the same complaint, the issues of law shall be first disposed of.” The present case does not, however, come directly within the provisions of that section, as the demurrer was not to the complaint, but 'to one of the answers. The objection was not raised at the time of the trial; in fact, the plaintiff failed to appear or to prosecute his action at the time set for trial. At most, it was but an irregularity; and in this case w6 cannot see that the plaintiff has thereby been “ prevented from having a fair trial,” to bring his case within the first clause of Sec. 193 of the Practice Act. Mor has he suffered any injustice