Daly v. Sorocco

Works, J. Action to quiet title, and for an injunction. The complaint contained the usual allegations of ownership and right to possession in the plaintiff, and certain other facts, the only object or purpose of which must have been to obtain the injunction prayed for. The answers of the defendants put in issue the allegations of the complaint, and certain affirmative matters were pleaded. The court found that the plaintiff was not the owner of the property in controversy at the time the action was commenced, and was not entitled to the possession thereof. There were certain other special findings immaterial to the question presented on this appeal.

The appellant contends that the finding that the plaintiff was not the owner of the property was a finding of a conclusion, and that the facts showing that he was not the owner should have been found. If so, the plaintiff’s complaint was bad also. It alleged the ownership as a fact, and the finding was as broad and as spe[368]ciñe as the allegation of the appellant’s pleading. But the finding was sufficient. Where a party alleges his ownership of real estate in an action of this kind, a finding that he was or was not such owner is a finding of a fact, the fact in issue, and the evidence going to prove such ownership need not, and should not, be pleaded or found. (Payne v. Treadwell, 16 Cal. 247; Smith v. Acker, 52 Cal. 217; Frazier v. Crowell, 52 Cal. 399; Murphy v. Bennett, 68 Cal. 528.)

The appellant further contends that the cause should be reversed because the court failed to find upon certain other issues presented. But his right to maintain the action was based wholly on his ownership and right to possession, and these being found against him, it was immaterial to him whether the court found as to the other facts or not, as the judgment must have been against him, whatever the other findings might have been. Under such circumstances the failure to find on certain issues is not cause for reversal. (McCourtney v. Fortune, 57 Cal. 617; Murphy v. Bennett, 68 Cal. 528.)

Judgment affirmed.

McFarland, J., Sharfstein, J., Paterson, J., Beatty, C. J., and Thornton, J., concurred.