Le Roy v. Rogers

By the Court, Rhodes, J.: The only question in the case, is whether the plaintiffs are barred of a recovery of the possession of the premises, by the Statute of Limitations. The plaintiffs, in the statement on their motion for a new trial,' among other grounds, specify certain particulars in which the finding is against the evidence, and the case depends upon a solution of the questions involved in those grounds. It is proper that we should say, that it is a very plain and simple matter for the party moving for a new trial upon grounds of that character, to specify each particular finding of fact which, in his opinion, is contrary to or not sustained by the evidence, instead of stating, as in this case, that an alleged finding, which counsel deduces as an ultimate fact—a conclusion—from several facts separately stated in the finding, is against the evidence. By pursuing the course adopted in this case, counsel will sometimes incur an unnecessary risk, and will always cast unprofitable labor upon the Court, as well as the opposite counsel.

A patent for the lands was issued to Leese, under whom the plaintiffs claim, on the 3d of March, 1858, and the patent, it is conceded, vested in him the legal title. It was found by the Court, and not questioned by the plaintiffs, that the defendants and those under whom they claim were in the adverse possession of the premises from 1853 to January 9th, 1864, the time of the execution of the writ of possession, issued upon the judgment in ejectment in the case of Haggin et al. v. Clark et al. 28 Cal. 162. A mortgage executed by Leese to Vallejo was foreclosed in 1860, and the premises having been sold by the Sheriff were conveyed to the assignee of the mortgagee in 1862, and were by him conveyed to the plaintiffs November 9th, 1862. Haggin «and others, holding the legal title as the assignees of Leese, commenced suit in 1860 against Clark and others to recover the possession of the premises covered by the patent, and February 9th, 1863, recovered judgment against the defendants in that action, among whom was Edward Michelson, and execution was [233]issued on the judgment. The Court finds in the case, among other things : “ Fifth—That thereupon, on the 17th day of March, A. D. 1863, the defendant Nathan Rogers filed his complaint in this Court against the plaintiffs in the suit of Haggin and others, claiming that he was not a party or privy to said judgment, and prays a perpetual injunction and stay of execution. To which the defendants answered, alleging service of process or summons upon the said Edward Michelson—and after trial had upon the merits, a judgment was rendered against the said Rogers and in favor of the defendants in that suit, determining that he had no right to the relief he sought by his said suit, and dismissing his complaint.” The Court also found that Nathan Rogers, the defendant herein, was neither a party nor privy to the suit of Haggin v. Clark, and never appeared therein.