Reinhart v. Lugo

Foote, C. This is an appeal from a judgment rendered in an action for partition. It comes here upon ; the judgment roll alone.

The point is made by the appellant that the findings negative certain allegations of the complaint, which are confessed by the failure of some of the parties to the action to answer them.

It is alleged in the complaint that the plaintiff and all the other parties to the action “hold and are in possession, and are the owners and tenants in common,” of five certain tracts of land described as A, B, C, D, and E. Several of the defendants, although duly served [640]with process, did not appear, and a default was taken as to them. The other defendants answered, and denied the allegations of the complaint, so far as any claim was set up in that pleading, to any tenancy in common to the tracts B and C, but they did not deny anything therein stated as to the tracts A, D, and E. Notwithstanding the admission by all the defendants (either by default or failure to deny the allegations of the complaint) as to the tracts of land last mentioned, the trial court found that none of the defendants who made default “has, or at the time of the commencement of this action had, any right or title or interest in or to the lands described in the complaint, or in or to any part thereof.” And making a further finding that neither of the defendants who filed answers claimed any interest in the lands mentioned in the complaint, except in the tracts B and C, rendered judgment for the defendants, claiming those last-mentioned tracts, that they were owners in severalty, the “ estate of Woodworth, deceased, of the tract B, and P. N. O’Donnell of the tract O; and that the plaintiff and none of the co-defendants had at the commencement of or at the time of the rendition of the judgment any right, title, or interest in any of the lands mentioned in the complaint.

If the rule is to prevail which obtains with reference to ordinary actions, it is plain that the findings of the court, being in direct contradiction of the admitted allegations of the complaint, are nugatory in so far as they affect the rights of the appellant in the tracts A, D, and E. (Burnett v. Stearns, 33 Cal. 469.) And the finding and judgment to that extent, being contrary to the facts admitted by the pleadings and outside of the issues made or tendered, are erroneous. (Gregory v. Nelson, 41 Cal. 278.)

It was held in Hughes v. Devlin, 23 Cal. 608, which was an action for partition, where a “ fact was averred in the complaint, and not denied in the answer,” that it