Wallace v. Otis

California Court of Appeal Nov 19, 1941 No. Civ. No. 6699Published

Before: Tuttle

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Holding. The court held that the judgment was void because it was based on a theory of trespass, which was not an issue raised by the pleadings or litigated at trial, as the complaint was predicated solely on fraud.

Issues

Whether the judgment exceeded the issues litigated in the complaint.
Whether the evidence supported a finding that the plaintiff consented to the defendant's possession of the disputed land.

Disposition. reversed

Quotations verified verbatim against the opinion

“A judgment which exceeds the issues litigated is coram non judice and void.”

“The court made no findings upon the issue of fraud, the sole basis for the action.”

“We find nothing in the pleadings or in the remainder of the record which would indicate that the issues determined by the findings were ever litigated. It therefore follows that the judgment is void.”

TUTTLE, J. This action was brought to recover damages arising out of fraudulent representations alleged to have been made in respect to the location of the boundary line between the adjoining lots of the parties. Findings were made in favor of plaintiff, and he was awarded damages in the sum of $600. It was also adjudged that plaintiff was the owner of a strip of land lying between said lots. The appeal is from the judgment.

It is contended that the findings and judgment are not within the issues. A judgment which exceeds the issues litigated is coram non judice and void. (Baar v. Smith, 201 Cal. 87 [255 Pac. 827].) The complaint here alleged ownership of a lot in Tuba City to be in plaintiff; that defendant, who owned the adjoining lot, in 1923, falsely represented to plaintiff that a survey showed the dividing line between the lots of the parties to be along the west wall of a building which defendant proposed to construct upon his property; that as a matter of fact the true line, according to the calls of plaintiff’s deed, was some six feet east of said line; that relying upon said representations, plaintiff consented to the erection of a concrete building along said proposed line; that thereafter plaintiff discovered the location of the true boundary line. Damages in the sum of $3500 was asked. The answer sets up several special defenses. The first is an agreement between the parties which reads as follows :

“This agreement made and entered into by and between George Fred Otis and W. O. Wallis, both of Tuba City, California, this 24th day of August, 1923,

‘ ‘ Witnesseth:

“It being to their mutual benefit, they have agreed to build a party wall on the line between their respective properties on the south side of Bridge Street.

[816]“George Fred Otis is to furnish all of the labor and material and pay for the said wall. Said wall is to be a 8" stone tile wall extending center of wall on the property line 70 feet back from Bridge Street, in Tuba City, Calif.,

“Also, it is agreed that on completion of said wall W. 0. Wallis agrees to pay one-half of the expense of making of wall which amounts to $296.00. Also W. 0. Wallis has the right of joining to said wall with a building at any time.

“Signed: Geo. Feed Otis “Signed: O. W. Wallace.’’

Wallace v. Otis

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