Graves v. Hebbron

CHIPMAN, C. Action to quiet title to a certain tract of land situated in Monterey county. Plaintiff had judgment. Defendant appeals from the order denying his motion for a new trial. The land in question is a piece of about thirteen acres which defendant claims lies in the northwest quarter of the northwest quarter of section 29, township 15, south, range 6 east, but which plaintiff contends is part of the northeast quarter of section 30 of that township. Plaintiff describes in his complaint the particular tract by metes and bounds. Defendant denied' plaintiff’s title and alleged title in himself. Defendant, by way of separate answer, avers that he commenced an action December 31, 1884 (entitled Hebbron v. Graves) against plaintiff in this action "for the recovery of the possession, claiming to be the owner thereof and seised in fee and entitled to possession of the following described land”; then follows the description of certain land lying in sections 19, 20, and 29 of said township, as to which defendant avers that the title was then involved, and also that the location of the line dividing sections 19 and 20 and sections 29 and 30, running north and south, and the location of the comer common to sections 19, 20, 29, and 30 were involved and litigated; and averring that it was admitted by Graves at the trial of said action of Hebbron v. Graves, that, if the boundary line between sections 19 and 20 and 29 and 30 was situated and located as claimed by Hebbron, then that Hebbron was entitled to judgment for the lands described in his complaint; that to entitle plaintiff in this action to recover "the said line running north and south between said sections 29 and 30 must be removed nearly eight chains further east than as located, fixed, and determined, adjudged and decreed by the judgment in the said suit of the said Hebbron against the said Graves, and the common corner to sections 19 and 20, 29 and 30 must he removed six and eighty-four one-hundredths chains east of where the same was located, fixed, determined, adjudged, and decreed in the said judgment of the said Hebbron against the said Graves, duly given an [402]made by tire said superior court aforesaid”; that if the line and common corner referred to remain as determined in that action, then plaintiff in this action has no right, title, or interest in the premises sued for; averred that the defendant Graves appealed from the judgment and from the order denying new trial to the supreme court, where the judgment and order were affirmed.

Plaintiff introduced the patent of the United States, dated April 14, 1890, to the northeast quarter of section 30; a witness testified that the land in question is part of the northeast quarter of section 30. Plaintiff thereupon rested. Defendant showed title to the northwest quarter of the northwest quarter and the east half of the northwest quarter of section 29. It was stipulated that the transcript on appeal in Hebbron v. Graves might be offered and introduced in evidence for the same purposes and “to the same effect as. the original record might be introduced, if the same were, presented”; and the transcript in that case is set out in the transcript in this case. It contains the judgment-roll, statement of the case, the evidence at the first trial, the steps taken to appeal—in short, the entire record on Appeal. Defendant offered the transcript, as counsel stated, for the purpose of showing that the parties were the same as here, and to show that the land involved was the same, and that the object was to settle the boundary lines between the lands of the parties, the location of the corner common to sections 19, 20, 29, and 30, and that counsel would follow up the offer by showing that the appeal was perfected and the judgment of the lower court affirmed, and that “the controversy here is precisely the same controversy as in that suit.” Plaintiff objected to the judgment-roll' on the ground of its immateriality, irrelevancy, and incompetency, and on the same ground objected to the admission of the. statement of the case, part, of the transcript; and it is now claimed by respondent that, the statement is not properly part of this record,, and cannot be considered because there was no distinct ruling upon both of his objections. Some discussion ensued upon the objection, in which the court took part, and counsel for plaintiff stated as follows: “Our principle objection is that it is apparent from the inspection of the record itself (the transcript) that the judgment-roll was made up and that judgment was entered long prior to the title which we are