Mauldin v. Clark

Works, J. This is an action for damages for the conversion of three thousand cords of wood. The complaint was not verified. The defendant pleads the general denial, and, as a separate defense, that prior to the bringing of this action the plaintiff brought a suit in the court below for the possession of certain real estate, decribing it, and to recover the rents and profits, and for six thousand dollars damages for waste, in knowingly, willfully, and maliciously cutting off and selling the timber on said real estate; and that judgment was rendered in favor of the plaintiff in said action for the recovery of said real estate, and against her as to the alleged damages for detention thereof and waste.

It is averred "that the wood and the value thereof [53]described in the complaint in this action constituted the rents and profits of the said land during the time that defendants were in the possession of the same as aforesaid, and is identical with that described in the complaint of plaintiff in the former action above named as having been cut and sold by defendants during their said possession of said property, and as constituting waste thereon. And the defendants aver that the said judgment in the said former action is now in full force, and is a bar to the recovery of the-plaintiff in this action.”

Upon the trial the plaintiff commenced her case by an attempt to prove the defense. The judgment roll of the case referred to was introduced in evidence, and proof made that while the defendants were in possession of the property they cut down timber, converted it into wood, and sold the wood. The value of the wood was proved, and the issuance of a writ of restitution and its service. The defendant moved for a nonsuit on several grounds, among others that there was no proof that plaintiff owned the property sued for, and that her cause of action was barred by the former action.

Counsel on both sides have elaborately argued the question, whether the former action was a bar or not, and incidentally, whether there was such a finding and judgment upon the question of waste as could bind the plaintiff under any circumstances.

Without going into a discussion of these questions, it is sufficient to say that the judgment could not bar this action, for the plain reason that the issues in the two cases were essentially and entirely different. (Taylor v. Castle, 42 Cal. 367.) So much of the former action as was based upon the allegation of waste was an action for injury to real estate. The case at bar is one for the conversion of personal property. But the nonsuit was rightly granted on the other ground mentioned. There was no proof that the plaintiff owned any cord-wood. Appellants contend that by proving the judgment for the possession