Tuffree v. Stearns Ranchos Co.

GAROUTTE, J. Moses Hopkins, claiming to own an interest in a tract of land, was joined with others as a party defendant in an action to quiet title. Bicknell & White appeared as attorneys for all the defendants. During the litigation, and five years prior to j udgment, Hopkins transferred his interest in the property to the Stearns Ranchos Company. After judgment, and prior to an appeal therefrom by plaintiffs, Hopkins died. Thereafter Bicknell & White accepted notice of appeal in behalf of all the defendants, and the ease was heard and decided in this court upon its merits. Upon the return of the remittitur to the lower court a judgment was entered in accordance with the directions therein contained. Whereupon the Stearns Ranchos Company, by E. W. McGraw, its attorney, having had itself substituted as a party defendant, moved to amend the judgment as to the interest represented under the name of Moses Hopkins, upon the ground that this court failed to obtain jurisdiction over the Hopkins interest in the realty by reason of the fact of his death at the time the notice of appeal was served upon Bicknell & White. Ho substitution of any party defendant in lieu of Hopkins was ever made until the substitution of the ranchos company as stated. The present appeal is now prosecuted from the order of the trial court refusing to amend the judgment as prayed for. The Horthám interest in the real estate involved in this litigation stands generally in the same position as the Hopkins interest, at least as far as the law involved is concerned, and we refrain from setting out the facts as to that interest for this reason.

Section 385 of the Code of Civil Procedure reads: "An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue.....In case of any other transfer of interest the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding.” This provision of the law was construed in Walker v. Felt, 54 Cal. 386, where the court said: “Section 385 of the Code of Civil Procedure provides that in case of any transfer of interest the action may be continued in the name of the original party, or the court may allow the person to whom [308]the transfer is made to be substituted in the action. Under that section it was the right of the successors in interest in this case to prosecute this action in one of these forms. The party who had transferred his interest divested himself of any power to control the action. He could not dismiss it, because his successors had a right to have it continued. The validity of the order of dismissal in this case rests solely upon the consent of the original plaintiff, given ten years after he had transferred his interest in the action. As he had no right to interfere with the action, the court, on being advised of that, should have vacated the order based upon it.” In Malone v. Big Flat Gravel Min. Co., 93 Cal. 384, this court said: “Under this section, if property is conveyed during the pendency of litigation in regard to it, the grantee may thereafter continue to prosecute or defend the case in the name of his grantor, or may cause himself to be substituted in his place.” In Plummer v. Brown, 64 Cal. 430, it is declared: “After transferring his entire interest in the subject of the controversy, the defendant was only nominally a party to the action. • The real parties in interest were his grantees. The entry of his default affected them, not him.”