Swift v. Occidental Mining & Petroleum Co.

CHIPMAN, C. The complaint alleges the ordinary action in ejectment to recover possession of eighty acres of land leased by plaintiffs to the assignors of defendant Occidental Mining and Petroleum Company for mining purposes. Defendant High was an employee of defendant company, and has no interest in the subject matter of the action. In the opinion the word “defendant” will have reference to the company. Defendant filed an answer and also a cross-complaint, both of which were amended by leave of court. The amended cross-complaint of defendant alleges the execution of a lease of the land by plaintiffs, setting forth the document in haec verba; the assignment to defendant; performance by defendant and its predecessors; offer to execute a renewal, and tender by defendants to plaintiffs. In a second count allegations much the same as in second defense in the answer are set forth, praying that the renewal pro[25]vided for in the lease be decreed to be specifically performed; or, in other words, that plaintiffs be required to execute a new lease. Plaintiffs, answering the cross-complaint, denied the allegations as to performance, and alleged discontinuance of the work for periods specified; alleged also the wrongful cutting of timber, and the burning of oil for fuel; failure to pay royalties as required by the lease. The pleadings are verified. The court made findings substantially in accordance with the allegations in the amended answer and amended cross-complaint, and entered its decree enforcing specific performance of the covenant for a renewal of the lease as prayed for in the cross-complaint. Plaintiffs moved for a new trial upon a statement of the case, which being denied, they appeal from the order. There is no appeal from the judgment. There was no demurrer to the cross-complaint or answer.

It is urged by appellants that the findings are insufficient to suport the judgment, and that the cross-complaint does not state a cause of action, and that the conclusions of law are unsupported by the findings. The insufficiency of the complaint cannot be considered on an appeal from an order denying a motion for a new trial, nor on such motion can the question whether the findings sustain the judgment be considered: Martin v. Matfield, 49 Cal. 42; Brison v. Brison, 90 Cal. 323, 27 Pac. 186; Bode v. Lee, 102 Cal. 583, 36 Pac. 936; Rauer v. Fay, 128 Cal. 523, 61 Pac. 90; and numerous other eases. "Where the conclusions of law are claimed to be erroneous, and not consistent with or not supported by the findings, the moving party may .proceed under sections 663, 663% of the Code of Civil Procedure (Shafer v. Lacy, 121 Cal. 574, 54 Pac. 72); and where this course is not pursued, there must be an appeal from the judgment, or the sufficiency of the findings to support the judgment cannot be considered (Patch v. Miller, 125 Cal. 240, 57 Pac. 986). In a specification in the notice of motion that “the decision is against law” for any reason appearing on the judgment-roll, such as a failure to find upon a material issue, or that wrong conclusions of law have been drawn from the findings, such specification can only be considered upon an appeal from the judgment: Thompson v. City of Los Angeles, 125 Cal. 270, 57 Pac. 1015. This court is limited in its review