Isaacs v. Jones

THE COURT. David R. Saunders and wife were, prior to the times herein mentioned, the owners of certain parcels of real property in the county of Los Angeles. This property was subject to a deed of trust to secure the repayment of a promissory note held by Charles Isaacs. Saunders also became indebted to J. Edgar Ross, who brought an action against him to enforce payment, and at the same time caused an attachment to be issued and levied upon the property. In time Ross obtained judgment for some $1720, and upon an execution sale he became the purchaser of the property, and in due time received a deed thereto. In the meantime Saunders had sold his interest in the real property to H. M. Jones, respondent herein. Isaacs, not having been paid, directed the trustee to proceed to sell under the power in the trust. A receiver was appointed who ousted Jones who had been in possession. Jones had continued to occupy the property for a period of one month and eight days after Ross had received his deed therefor, and the receiver occupied the property and collected the rentals from that time until January 2, 1932, a period of six. months, when Isaacs finally received his deed and the receiver discharged, after paying into court the net proceeds of his receivership to await the outcome of the litigation.

Ross, claiming to be entitled to recover some $300 ■ from Jones for the month he used and occupied the premises, and also to recover from the receiver while in possession, intervened in the original foreclosure action of Isaacs v. Jones et al. However, in that action as to the moneys collected by the receiver (Isaacs v. Jones, 12 Cal. App. (2d) 98 [54 Pac. (2d) 1123]), the court found that such moneys in his hands belonged to Isaacs and not to Ross. The sole issue now in this phase of the action is whether Ross, the intervener, can recover the value of the occupancy from Jones during the time the property was held by him as a tenant in possession.

The trial court here held that the original action was an action for specific performance of a contract and for declara[90]tory relief (under the doctrine of Mines v. Superior Court, 216 Cal. 776 [16 Pac. (2d) 732]), and the claim of intervener Ross being a claim at law and for an amount less than the jurisdictional requirement of the superior court, was not proper, and ordered judgment for defendant Jones and against Ross, the intervener.

The original complaint is not a part of the judgment roll before us, and this being an appeal upon the judgment roll, we must accept the interpretation of the trial court that the original action was for specific performance and declaratory relief.