Johnson v. Vance

Belcher, C. C. — This is an appeal from a judgment entered against the defendant on the pleadings, and the case is brought here on the judgment roll. The action is ejectment. The complaint alleges that on the ninth day of October, 1888, the plaintiff was the owner and in possession of the northwest quarter, the north half of the southwest quarter, and the southwest quarter of the southwest quarter of section 31, in township 3 north, range 9 east, Mount Diablo base and meridian; and that, on the day named, the defendant entered and ousted the plaintiff from the said land, and has ever since continued to withhold the possession thereof from the plaintiff, to her damage in the sum of fifteen hundred dollars. For answer to the complaint, the defendant pleads, in bar of the action, a judgment entered in a former action between the same parties; and this is his only attempted defense. The answer alleges that the complaint in the former action was filed on the eighth day of June, 1888, and that the judgment therein was made and entered on the second day of October, 1888. It then sets out a copy of the complaint, answer, findings, and judgment, from which it appears that the plaintiff alleged in the former action that in June, 1887, she was the owner in fee-simple, and entitled to the possession, of the aboredescribed section of land; and that afterwards, in the same month, the defendant ousted and ejected her from the possession thereof; that the defendant admitted his possession of the east half of the said section, but denied that he was ever in possession, or claimed to be in possession, or ever ousted or ejected the plaintiff from the pos[112]session, of the west half of the section, except the southeast quarter of the southwest quarter thereof, which it was alleged that he owned, and was entitled to the possession of; that the court found that the plaintiff was the owner of all the land described in her complaint, except the forty acres alleged by defendant to be owned by him; and that during the time mentioned in the complaint, defendant withheld from plaintiff the east half of section 31 described in said complaint; and that judgment was entered that the plaintiff recover from the defendant possession of the east half of said section 31.

The answer then further alleges that the possession of exactly the same land is demanded in the complaint in this action, as was demanded in the complaint in the former action, and that the parties, plaintiff and defendant, are the same in both actions; that the judgment in the former action finally determined and decided that the plaintiff was the sole owner of all the land described in her complaint in this action, and that the said judgment is now in full force and effect, and binding upon plaintiff and defendant in this action; “that the defendant herein has acquired no title, and claims to have acquired no title, to any of the land described in the plaintiff’s complaint herein, since the commencement of said former action for the possession of the said land in controversy; that the title to the land described in plaintiff’s complaint herein, and the right of possession thereof, has become and is res adjudicata by and between the parties to this action, by reason of said judgment duly made and rendered in this court in favor of the plaintiff herein, and against the defendant, on said second day of October, 1888.” Wherefore defendant prays that the action be dismissed, and that he have judgment for his costs. When the case was called for trial, counsel for plaintiff moved for judgment on the pleadings, and the motion was granted on the ground that none of the allegations of the complaint