Hancock v. Lopez

By the Court : This is an action of ejectment for the recovery of the possession of a portion of the Rancho La Brea. The Court admitted in evidence the judgment roll in a.n action for the partition of that rancho, brought by Antonio J. Rocha and others against Henry Hancock and others. The plaintiffs in that action alleged [370]that they were tenants in common, with certain of the defendants, in the rancho; and Henry Hancock and certain other of the defendants alleged in their answer that they were the owners in fee of the whole of said rancho ; and the cause having been heard, the Court found that John Hancock and certain other defendants named in the findings were the owners of the whole of said rancho, and adjudged and decreed that the last named persons were the owners in fee of the whole rancho, and that they recover from the plaintiffs their costs, etc. The admission in evidence of that record presents the principal question in the case.

It is contended by the defendant that, upon its being found that certain of the defendants in that action held the title in fee to the whole rancho, it was the duty of the Court to dismiss the action; that the proof of such title in the defendants showed that the plaintiffs were not tenants in common or joint tenants in the lands, and that the only step the Court could then take was to dismiss the action ; that the judgment which was in fact rendered is, in view of the findings, to be read as amounting only to a judgment of dismissal, and that such judgment of dismissal cannot be relied upon by the defendants in that action as an adjudication of title in them.

The only subd. of sec. 581 of the Code of Civil Procedure, which provides for the dismissal of actions, which was applicable in that case, is the fifth; which is, that an action may be dismissed, or a judgment of nonsuit rendered, “by the Court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury ”; and the following section provides that in every case, other than those mentioned in the last section, judgment must be rendered on the merits. It does not appear that the.plaintiffs failed to prove a sufficient case for the jury, nor does it appear that the defendants moved for a judgment of nonsuit, and therefore it cannot be treated as such a judgment in a technical sense.

But is a judgment for the defendants in partition upon stfch findings to be regarded in legal effect as only the equivalent of a judgment of nonsuit? The parties to the action, as was said in Senter v. Bernal, 38 Cal. 637, and many other cases in this