Opinion
Rehearing Granted May 25 1927.
In Bank.
Application by Veronica C. Baird and others for writ of prohibition to be directed to the Superior Court, City and County of San Francisco, T. I. Fitzpatrick, Judge, to prevent further proceedings on a petition for distribution.
Writ granted. COUNSEL
Karl C. Partridge, of San Francisco, for petitioners.
R. P. Henshall, Robert R. Moody, C. M. Fickert, and E. A. Cunha, all of San Francisco, for respondents.
OPINION
PER CURIAM
Petition for writ of prohibition by Veronica C. Baird, Benjamin H. Baird, and Thomas R. Baird, who are named as devisees and legatees in the will of David J. Baird, deceased. The prayer of petitioners is that a petition for distribution of the estate of said decedent, filed by one David Jennings Baird, by his guardians, wherein it is alleged that said David Jennings Baird is the son and heir of decedent and entitled to his entire estate under the provisions of the laws of succession of this state, because not mentioned in the will of decedent, be ordered stricken from the files of the respondent superior court in and for the city and county of San Francisco, and that said court and respondent Hon. T. I. Fitzpatrick, judge thereof, be restrained from further proceedings in the matter of hearing said petition. It is averred in the petition for distribution, which is annexed to the petition for the writ of prohibition herein sought, that David Jennings Baird, although born illegitimate was adopted and legitimated by the procedure prescribed in section 230, Civil Code.
The right of the minor child known as David Jennings Baird to succeed to the estate of David J. Baird, deceased, has been the subject of a controversy which has extended throughout a period of almost 20 years and has on several previous occasions engaged the attention of this court. Estate of Baird, 173 Cal. 617, 160 P. 1078; Id., 181 Cal. 742, 186 P. 351; Id., 182 Cal. 338, 188 P. 43; Id., 193 Cal. 225, 223 P. 974; Id., 195 Cal. 59, 231 P. 744; Id., 198 Cal. 490, 246 P. 324. Complete statements of the facts out of which the controversy arose appear in the opinions heretofore filed. We shall therefore briefly notice only those facts in the history of the litigation which we deem most pertinent to an understanding of the present inquiry.
David J. Baird died on November 25, 1908, leaving a will in which he neither provided for nor mentioned the minor, David Jennings Baird. On April 27, 1914, said minor, by his guardian, filed a petition for partial distribution of the estate of the decedent, in which he alleged that he was the son of decedent and his heir by virtue of an adoption and legitimation complying with all the requirements of section 230, Civil Code. His claim was opposed by the mother, brothers, and sister of decedent. Thereafter the court heard the petition sitting without a jury, the late Hon. James V. Coffey presiding, and found adversely to the claimant on all issues of adoption. The order denying the petition was reversed by this court on appeal because of the refusal of the probate judge to grant a jury trial on the issue of adoption. Estate of Baird, 173 Cal. 617, 160 P. 1078. The court expressly stated that it refrained from expressing an opinion regarding the sufficiency of the evidence to prove an adoption. After a jury trial, the matter again came before this court upon an appeal from an order distributing the entire estate of decedent to the claimant in pursuance of special verdicts of the jury finding for the claimant on all issues of adoption. This court reversed the lower court on the ground that the evidence was insufficient to support the finding that the decedent had adopted said minor child. Estate of Baird, 182 Cal. 338, 188 P. 43. A second jury trial was had, which, as in the previous case, resulted in special verdicts favorable to the minor child on all issues of adoption. The order distributing the entire estate to said minor, which was entered in pursuance of the special verdicts of the jury, was likewise reversed by this court on appeal (Estate of Baird, 193 Cal. 225, 223 P. 974), the court being of the opinion, first, that the second appeal (Estate of Baird, 182 Cal. 338, 188 P. 43) established as the law of the case that all evidence adduced upon the second trial was insufficient to establish a legal adoption of the child, and that, since the evidence introduced upon the third trial was substantially the same as that introduced upon the former trial, the law of the case required a finding and judgment that an adoption had not taken place, and, secondly, that irrespective of the law of the case, the evidence introduced upon the third trial would not sustain a finding of adoption. This court thereupon ordered and directed the trial court to set aside the special verdicts and findings in favor of the child and to enter judgment for the appellants denying the petition for distribution upon the ground that the child was not the adopted son or heir of decedent. The trial court upon the going down of the remittitur entered judgment in accordance with the directions contained therein. It is upon the interpretation to be given this judgment, entered in obedience to the mandate of this court, that the rights of the applicants for the writ of prohibition in the present proceeding depend.
After the going down of the remittitur to the lower court, two notices of intention to move for a new trial were filed on behalf of said minor, David Jennings Baird. Both motions were granted. Upon appeal to this court the order granting the motions was reversed on April 23, 1926. On August 18, 1926, Veronica C. Baird and I. I. Brown, as executors of the estate of David J. Baird, deceased, filed their final account and petition for final distribution. The petition was set for hearing on August 30, 1926. On August 28, 1926, said minor, David Jennings Baird, filed a petition for distribution to him of the estate of said decedent. When the petition of the executors came on for hearing on August 30, the court, after hearing the account, continued the hearing on the executors’ petition for distribution to September 20, 1926, and set the petition of said minor child for hearing on said date. Veronica C. Baird, decedent’s mother, and Benjamin H. Baird and Thomas R. Baird, his brothers, all of whom are named as legatees and devisees in decedent’s will, thereupon filed the petition for writ of prohibition now before us with the object of restraining further proceedings for the consideration of the petition of said minor child for distribution. The petition for distribution does not differ in material respects from the petition considered by this court on the four former appeals. In each the petitioner claims to be the legitimated son and heir of decedent by virtue of an adoption complying with the requirements of section 230, Civil Code.
It is contended on behalf of said minor child that the judgment entered on April 22, 1924, in obedience to the mandate of this court (Estate of Baird, 193 Cal. 225, 223 P. 974), is not an adjudication on the merits of the claim of adoption which finally and conclusively determined that said minor child was not the legitimated son or heir of decedent, but merely a judgment of nonsuit, and hence not a bar to an inquiry into the question of heirship in a subsequent proceeding such as that here sought to be restrained. Even though the claimant’s right to file the petition for distribution and to compel a hearing thereon be conceded, it seems extremely doubtful whether any benefit will result to him from an insistence on these rights. Although the judgment be a mere nonsuit and not a binding determination that an adoption did not take place, as a nonsuit it is, nevertheless, an adjudication that the evidence offered upon the trial was insufficient to support a finding of adoption, and as such precludes the trial court from finding in a subsequent proceeding on the basis of the same or substantially similar evidence that an adoption did take place. 2 Freeman on Judgments, p. 1532. Upon each successive appeal in this matter it has been vigorously contended that the evidence offered differed sufficiently from that introduced upon previous trials to sustain a finding of adoption. In each case this court has ruled the evidence insufficient. Approximately 16 years elapsed between the date of decedent’s death and the date when the notices of intention to move for a new trial were filed by the claimant with accompanying affidavits purporting to set forth newly discovered evidence, and the proceedings have been vigorously contested throughout. Counsel representing said minor make no suggestion that they are now prepared to offer evidence differing in legal effect from that heretofore presented. In the absence of such evidence, the prolongation of this proceeding would seem to be in vain, wasteful of the time of the courts, and involving useless expense to the state and to the litigants.
We do not, however, deem the judgment of April 22, 1924, a judgment of nonsuit. The remittitur, in pursuance of which said judgment was entered, contains the following provision:
‘It is hereby ordered, adjudged, and decreed by the court that the decree of partial distribution of the superior court in and for the city and county of San Francisco in the above-entitled cause be and the same is hereby reversed and the trial court is ordered and directed to set aside the special verdict and findings, and to enter judgment for appellants denying the petition for partial distribution upon the ground that respondent is not the adopted son or heir of the deceased.’
The judgment entered by the lower court, after quoting the remittitur provided as follows: follows:
‘It is therefore ordered, adjudged, and decreed that the hereinbefore mentioned special verdicts and findings be and the same are hereby vacated, annulled, and set aside, and the said petition for partial distribution of David Jennings Baird, a minor, is hereby denied.’
In advancing the argument that this judgment is a nonsuit and not a judgment on the merits finally concluding all controversy, counsel for said minor child rely upon certain language in the opinion rendered upon the third appeal (Estate of Baird, 193 Cal. 225, 223 P. 974), and in the opinion reversing the order granting the motions for a new trial made on behalf of said child (Estate of Baird, 198 Cal. 490, 246 P. 324). In the decision in volume 193 of our reports, which reversed the decree distributing the entire estate to the child, this court held that the trial court erred in denying both the motion for a nonsuit and the motion for a directed verdict, for the reason that all evidence offered on behalf of said minor at the trial, with all inferences properly deducible therefrom, was insufficient to establish an adoption. A judgment of nonsuit and a judgment upon a directed verdict resemble each other in that each is available to the defendant when the plaintiff fails to establish his case by all evidence introduced in support of his claim, but they differ in that a judgment of nonsuit does not bar a subsequent action upon the same cause while a judgment upon a directed verdict is considered a judgment upon the merits and makes an end of the litigation. 9 Cal.Jur. 547; 15 Cal.Jur. 131; 24 Cal.Jur. 913; 2 Freeman on Judgments, p. 1590; Estate of Sharon, 179 Cal. 447, 177 P. 283; City and County of San Francisco v. Brown, 153 Cal. 644, 96 P. 281; Mohn v. Tingley, 191 Cal. 470, 217 P. 733. If the trial court had granted the motion for a nonsuit, the minor might thereafter have filed a new action and on the basis of different evidence have established an adoption; but, if the trial court had granted the motion for a directed verdict, the judgment upon said verdict would have operated as a bar to subsequent litigation of the claim of the minor. When it became apparent that the evidence introduced to establish the child’s claim, viewed in the light most favorable to the child, was insufficient to establish a legal adoption, it was within the power of the trial court to either grant the motion for a nonsuit, and thereby terminate the pending proceeding with the right to the petitioner to commence a new action, or to grant the motion for a directed verdict, the judgment upon which would operate as a bar to future litigation of the same question. The court did neither, but, instead, submitted the case to the jury, which erroneously returned verdicts in the child’s favor (upon which was entered the judgment which this court later held unsupported by the evidence. The petitioner’s evidence being insufficient as a matter of law to sustain the special verdicts and the findings and judgment granting the prayer for distribution entered pursuant thereto, it was within the power of this court, on appeal, to direct the reversal of the judgment entered in the trial court and the entry of a judgment denying the petition for distribution which would operate as an adjudication upon the merits and bar further inquiry into the same subject of litigation— the adoption of said minor child. We are of the opinion that the direction given by this court was for the entry of such a judgment. The procedure adopted by this court reveals an obvious design and purpose to put an end to this litigation for all time. If the court had intended to permit the petitioner for distribution to relitigate his right to succeed to decedent’s estate, it is reasonable to suppose that it would simply have reversed the case, as it had done upon the two-previous appeals, and thus have afforded an opportunity for the re-examination of questions of fact upon a new trial.
If, after the court had erroneously denied both the motion for a nonsuit and the motion for a directed verdict, the jury, upon the submission of the case to it, had brought in verdicts against the petitioner for distribution on all issues of adoption instead of the verdicts in his favor as in fact rendered, it could not successfully be contended that a judgment entered upon such adverse verdicts would not have been a judgment on the merits barring future litigation. If the jury had been given instructions consistent with the law of the case as announced in the earlier decision (Estate of Baird, 182 Cal. 338, 188 P. 43), it could not, this court has held, legally have reached the conclusion on the basis of the evidence before it that an adoption had been made out. It was the intent of this court to direct the trial court to enter a judgment denying the petition of said minor child for distribution to him— which was the only judgment that could lawfully be given— and that the judgment thus entered should operate as an adjudication on the merits barring subsequent litigation, with the same legal effect as a judgment based upon verdicts of the jury adverse to said minor would have had.
It was not necessary to the reversal by this court of the order of the court below granting the motions for a new trial (Estate of Baird, 198 Cal. 490, 246 P. 324) that the judgment directed by this court to be entered should be a judgment of nonsuit in the strict sense, and when the decision is read in the light of the facts it becomes apparent that it was not the intention of this court to hold that said judgment was a judgment of nonsuit in the sense that it would not bar a subsequent inquiry into a question which had already been extensively litigated.
The trial court, in its order granting the motions for a new trial after judgment entered in pursuance of the mandate of this court, made the following statement:
‘And in this regard the court in accordance with said section 657, C. C. P., doth further grant said motion for a new trial in addition upon the ground of the insufficency of the evidence to justify and sustain the verdict and the decision, and in this regard the court doth specify that, in its opinion and decision herein, certain testimony of certain witnesses who testified on behalf of the respondent is not believed by the court to be credible and true, and therefore that the decision herein is not sustained by the evidence.’
A motion for a nonsuit or directed verdict is based entirely on the insufficiency of the plaintiff’s evidence, defendant’s evidence being disregarded when such motions are under consideration. When this court has declared, as it has in the instant case, that the state of the evidence was such as to warrant the granting of a motion for a nonsuit or directed verdict, it would be improper for the trial court after judgment on the merits for defendant to grant a new trial because of the insufficiency of defendant’s evidence, although a motion for a nonsuit or directed verdict had not been made, or, having been made, had been erroneously denied as in the instant case. In such cases plaintiff must lose because of the insufficiency of his own evidence and not as a consequence of any evidence offered by those who oppose him. Since the adverse evidence is entirely disregarded, its alleged insufficiency cannot constitute a ground for granting a new trial.
It is also contended on behalf of said David Jennings Baird that the application herein for a writ of prohibition is premature. In this connection said minor relies on the frequently reiterated statements of this court to the effect that objection to the action of the subordinate court must be made to that court and overruled by it before a writ of prohibition may be sought from this court. McAneny v. Superior Court, 150 Cal. 6, 87 P. 1020; Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192; Shriver v. Superior Court, 48 Cal.App. 576, 192 P. 124; Drew v. Superior Court, 43 Cal.App. 651, 185 P. 680; 21 Cal.Jur. 627. We are of the opinion that the writ of prohibition may be issued in the instant case without doing violence to this long-established rule of practice. The petition of said minor was filed on August 28, 1926, after the executors had filed their final account and petition for final distribution on August 18, 1926. When the petition of the executors came on for hearing on the day set, to wit, August 30, 1926, counsel representing the executors and counsel representing the minor were present in court. Counsel for the executors challenged the right of said minor to compel a consideration of his petition and requested the court to proceed with the hearing of the executors’ petition, on the ground that the question of said minor’s right to inherit from decedent had already been determined adversely to him. It was apparent upon the face of the minor’s petition, which was before the court, that the sole question presented by the petition related to the minor’s right to succeed to the estate of decedent by virtue of an adoption, under the provisions of section 230, Civil Code, and the former adjudication barred any inquiry into this question. The remarks of the court showed a familiarity with the proceedings. Despite the apparent lack of jurisdiction, the court set the petition for hearing on September 20, 1926. We deem it the wisest exercise of discretion to issue the writ.
We feel constrained to say that the order here made is the logical and inevitable effect of the several orders and judgments made and entered in the original proceeding and others which followed it. In other words, the law of the case, as heretofore settled, rules our action in this proceeding.
Let the peremptory writ of prohibition issue as prayed for.