Bank of America National Trust & Savings Ass'n v. Feig

SPENCE, J. —In an action previously brought, defendant Feig had recovered judgment against plaintiffs herein. (Feig v. Bank of America etc. Ass'n, 5 Cal. (2d) 266 [54 Pac. (2d) 3].) After that judgment had become final, plaintiffs brought this action. Their amended complaint, upon which this action went to trial, was entitled “Amended complaint by trustee to secure settlement of his accounts”. Defendants interposed several defenses, including the defense of res judicata. The trial court found in favor of defendants upon said defenses and' entered judgment accordingly. Plaintiffs appeal from said judgment.

Appellants’ contentions are (1) “that a judgment purporting to adjudicate a matter not within the issues or litigated is not res judicata with respect to such matter in [249]a subsequent action”; (2) that “the issue in the first action was confined to the existence of the trust and this was the only question litigated”; and (3) that “the first judgment purporting to adjudge that the bank should pay interest at the legal rate and should pay damages for withholding the real property is not res judicata in this proceeding and does not preclude the bank from securing a decree in this action that it is chargeable only with the interest and rents actually received by it” less deductions for its expenditures.

The first above-mentioned contention of appellants consists of an abstract statement of law and the correctness thereof may be conceded for the purpose of this discussion. (Bray v. Payne, 210 Cal. 465 [292 Pac. 478] ; Callnon v. Callnon, 7 Cal. App. (2d) 676 [46 Pac. (2d) 988]; see, also, Baar v. Smith, 201 Cal. 87 [255 Pac. 827].) The second above-mentioned contention is the vital one in the present ease for it constitutes the premise upon which the third contention is based. If said second contention is found to be without merit, then the third contention must necessarily fall. It therefore becomes necessary to examine the issues in the first action in order to determine whether the issue there “was confined to the existence of the trust”.

The facts out of which this litigation arose are fully set forth in the opinions on the two appeals in the first action. (Feig v. Bank of Italy etc. Ass'n, 218 Cal. 54 [21 Pac. (2d) 421] ; Feig v. Bank of America etc. Ass'n, supra.) The first trial of the first action was had upon the original pleadings. The original complaint in that action was in three counts which were described in Feig v. Bank of Italy etc., Ass'n, supra, as follows: The first count was for money had and received; the second count was for the recovery of a deposit; and the third count was in ejectment for the recovery of two pieces of real property. The judgment of nonsuit which had been ‘1 granted primarily on the theory that plaintiff had misconceived his remedy and should have alleged facts entitling him to equitable relief”, was reversed with directions to permit the plaintiff therein to amend his complaint as indicated in the opinion. The court further indicated that plaintiff was entitled “upon amendment of the complaint, to receive such relief, either legal or equitable, as the evidence warrants”.