Eaton v. Jones

Searls, C. This is an action to quiet the title of plaintiff to a parcel of land lying and being in the city of Los Angeles, bounded and described as follows:

“ Commencing at a granite stone monument set at the intersection of the produced center line of Rouland street and the western boundary of the city of Los Angeles, said center line being the present northern boundary of said Rouland street in the Wiesendanger city tract, and running thence along said west city boundary N. 0° 26' W. 37.72 feet to a stake in the southwest corner of the John Jones property; thence along a board fence S. 61° 55' 913.88 feet; thence S. 27° 47' W. 43.5 feet; thence N 61° 15' 30" W. 896 feet to the place of beginning.”

Defendant answered, denying the title and possession of the plaintiff to the land or to any portion thereof, and set up title to the land in herself.

The cause was tried by the court without a jury, and written findings filed to the effect that plaintiff is not the owner of the land, and that defendant claims an interest therein adverse to the plaintiff, which claim is not without right.

Judgment was entered thereon accordingly. Plaintiff moved upon a statement for a new trial. Upon the argument and submission of the motion for a new trial the court made an order as follows: “The motion for a new trial is argued and submitted, and the court now orders that the motion for a new trial be granted, unless within ten days after plaintiff furnishes defendant with a description of the property, so as to include only the property to the fence as it now stands on the south boundary of defendant’s property, the defendant’s counsel to have the judgment given herein so modified as to make the line of said fence the south boundary of defendants. [489]And in case such consent be given, then the motion for new trial be denied.” This order was made April 16, 1894.

The record shows that within ten days counsel for defendant were furnished with the description called for by the order for the purpose of a modification of the judgment, and that counsel for said defendant refused in writing to consent thereto, or to concur in the proposed modification of the judgment, which description and refusal were filed with the clerk of the court.

Thereafter, and on the first day of May, 1894, without further notice to the defendant or her attorneys, and in their absence, the court entered an order reciting that at the hearing of the motion for a new trial it appeared that the judgment for defendant “included property which the court had not intended to be included therein,” that the court had thereupon ordered, etc. (reciting the provisions of the former order); that the plaintiff had served the description of the property as called for, and that “the defendant not only having failed within said time (ten days) to consent to such modification of the judgment, but having also refused in writing to consent thereto,” wherefore it was adjudged that the judgment be vacated and set aside, and that a new trial be granted.