Hestres v. Brennan

By the Court, Sanderson, J. : The Court below did not err in denying the defendants’ motion to substitute Barco as plaintiff, upon the ground that since the commencement of the action he had succeeded to the plaintiff's title. If so, the substitution was a matter which did not concern the defendants, but the plaintiff and Barco. The sixteenth section of the Practice Act, so far as it relates to the substitution of another in the place of the plaintiff, in case of a transfer of the cause of action, is to be set in motion by the plaintiff or his vendee. As against the defendant, a plaintiff has a right to stay in Court until his case has been tried. If the.defendant desires to take advantage of the transfer for any purpose, he must, do so by sup[389]plemental answer. (Moss v. Shear, 30 Cal. 467; Barstow v. Newman, 34 Cal. 90.)

The Court erred, however, in receiving the State patent in evidence on the part of the plaintiff. The issues in an action of ejectment relate to the commencement of the action; and to recover, the plaintiff must show that he'was entitled to the possession at that time. (Yount v. Howell, 14 Cal. 465; Owen v. Fowler, 24 Cal. 192.) Having been issued long after the commencement of the action, the patent tended in no respect to show that the plaintiff was entitled to the possession at the time the action was brought.

The Court erred, also, in refusing to allow the defendants to prove title unless it was derived from the State of California or the plaintiff’s intestate. Conceding that the plaintiff’s intestate had acquired a title from the United States through the State location and patent, the defendants may have had an older title from the same source; and if so, they were entitled to prove it under their general denial-of the plaintiff’s title. (Megerle v. Ashe, 33 Cal. 74.)

Judgment and order reversed, and a new trial ordered.