Donner v. Palmer

RHODES, J. The first question is, What was determined 'by this court on the former appeal? At the first trial in the court below, the jury returned a verdict against the intervener, and the court having granted the intervener a new trial, the plaintiff appealed. The plaintiff and intervener had entered into a stipulation by which certain facts were admitted, and it was agreed “that it is the intention and object of the foregoing stipulation to submit to the court, as a question of law, the question of priority of the foregoing judgments, liens and attachments, and which of the parties acquired, under the sales herein mentioned, the interest of said John Yontz in the property sold as hereinbefore stated, and that either party may offer and give in evidence any documentary evidence they may see proper.” The intervener stated in his brief on the former appeal that “the only point is, whether the taking out of the transcript of the judgment in the ease of Cobb v. Yontz, in Santa Clara county, after the two years had expired, and filing it in San Francisco, created a lien upon the premises.” Mr. Justice Crocker, in delivering [394]the opinion of the court, after reciting certain facts agreed to in the stipulation, said: “Under this state of the facts, the simple question is, Which of these two parties, the intervener or the plaintiff, has the better right and title to this interest of Yontz?” The court was of the opinion that the intervener had the better right and title to that interest, and accordingly affirmed the order granting the intervener’s motion for a new trial. That was the matter, and the only matter, determined in the cause by this court, as between the plaintiff and intervener. No other point than the one above mentioned appears to have been made by either counsel, and none other was decided by the court. The question whether the petition of intervention stated facts sufficient to entitle the intervener to any relief, or whether it was a proper case for intervention, or whether he was entitled to judgment upon the evidence in the case, was not passed upon by the court. Nor were any of them necessarily involved in the point that was decided. A decision of one question of law presented by stipulation does not imply a waiver of all other questions in the case, nor does the decision of that question imply that other questions that might have been determined upon the record as presented were in fact decided. The ground that the complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to demur, but it* may be taken at any time.

The affirmance of the order granting a new trial left the case in the same position in every respect in which it stood, upon the order being granted, except only that upon the facts stated in the stipulation it was determined that the Yontz title was in the intervener. There was nothing to preclude the plaintiff from raising the questions which were considered by the court below, and upon which the petition for intervention was dismissed.