Opinion
Rehearing Denied March 19, 1948.
Hearing Granted April 29, 1948.
Appeal from Superior Court, Los Angeles County; Thurmond Clarke, Judge.
Action by Samuel C. Stoner and Bessie M. Stoner, husband and wife, against Maud Sarah Amy Calvert and others for partition, which was consolidated for trial with an action by Maud Sarah Amy Calvert against Samuel C. Stoner and others to have defendants declared constructive trustees of the interests which they claimed in such real estate, and for other relief. From a judgment for the plaintiffs in the partition action defendants appeal and from a judgment for the cefendants in the trust action, plaintiff appeals.
Judgment in each action reversed.
COUNSEL
Avery M. Blount and William J. Clark, both of Los Angeles, for appellants.
Everett H. Smith and Marvin Wellins, both of Los Angeles, for respondents.
OPINION
McCOMB, Justice.
Plaintiffs brought suit in the superior court against defendants for the partition of certain real properties in the city and county of Los Angeles. The fractional interests of plaintiffs in the properties had been obtained as a fee for certain legal services rendered by plaintiff Samuel C. Stoner for defendant Maud Sarah Amy Calvert. Thereafter defendant Calvert filed suit in the superior court of Los Angeles county against plaintiffs to have them declared constructive trustees of the interests which they claimed in the properties and which were the basis of the partition suit, and for other relief arising out of the alleged fraud of the plaintiff Samuel C. Stoner in obtaining interests in the property mentioned in the partition suit.
The cases were consolidated for trial, and after trial before the counrt without a jury, judgment was rendered in favor of plaintiffs in the partition suit and in favor of defendants in the action to have a constructive trust declared.
So far as material here the essential facts are these:
Plaintiff Samuel C. Stoner was retained as attorney for defendant Maud Calvert to represent her in certain probate litigation involving the will of her father. Mr. Stoner was retained by written agreement which provided that he would handle the case on a contingent fee of one third of anything which she should receive from the estate of her father over and above twenty-five dollars per month bequeathed to her in his will. Thereafter, on June 17, 1942, said plaintiff and said defendant entered into a supplemental agreement whereby Stoner agreed to pay one third of the court costs involved in the litigation, and at the same time defendant Maud Calvert executed an assignment in favor of Stoner of an undivided one-third interest in and to all of her share of the property of her father’s estate to which she might be entitled.
In due time a decree of distribution was entered distributing the real property in litigation, one third to Mr. Stoner and two thirds to defendant Maud Calvert, as joint tenants.
A
Pleadings
Paragraph XI of the amended complaint to have a trust declared read as follows:
‘That in truth and in fact there was no necessity or reason for contesting the Will or any portion thereof as the defendant then and there well knew; that in truth and in fact an application for Letters of Administration was a proper step to be take in plaintiff’s behalf as the defendant then and there well knew in truth and in fact there was no danger whatever that defendant would not be fully compensated out of the assets of the estate of said decedent for any services which he might render to plaintiff in connection with said estate as he, the defendant, then and there well knew; that in truth and in fact there were numerous ways in which the invalidity of said Will could be brought to the attention of the court without a contest of said Will as he, the defendant, then and there well knew.’
Paragraph XI of the answer to the amended complaint read as follows:
‘Denies generally and specifically each and every and all of the allegations contained in paragraph XI of plaintiff’s amended complaint, and in this behalf defendant refers the Court to the hereinbefore mentioned probate file in the matter of the Estate of Frank Eli Keller, being case number 213350, and specifically avers that solely by reason of the steps and proceedings taken by defendant herein, all of the matters referred to in paragraph XI of plaintiff’s amended complaint have been and are fully executed as to the contract of and for compensation, and fully adjudicated in said Probate Proceedings and fully adjudicated in another action heretofore tried in this Court.’
And as a second and separate affirmative defense, defendant alleged:
‘III
‘Defendant further avers that the relief sought in plaintiff’s amended complaint has heretofore been adjudicated by judgment in that certain action number 495724, in which said judgment has become and is now final, and plaintiff’s amended complaint herein attempts to restate a cause of action upon the same ground as that in which said judgment has heretofore been rendered, and is now final.’
B
Findings
In response to the issues thus created the court found:
(1) ‘The Court finds the allegations of paragraph XI to be untrue, and in this behalf the Court further finds that in the matter of the estate of Frank Eli Keller, being Probate No. 213350, all of the acts and things to be done and performed by defendant as attorney for plaintiff were fully executed by defendant and fully adjudicated and determined in said Probate Proceedings and in said Superior Court Action No. 495724.’
(2) ‘As to the defendant’s second separate and affirmative defense * * *
‘The Court finds the allegations of paragraph three to be untrue.’
This is the sole question necessary for us to determine:
Are the foregoing findings irreconcilable?
This question must be answered in the affirmative. The trial court has found that the relief sought in plaintiff’s amended complaint has heretofore been adjudicated by judgment in that certain action numbered 495724 (finding (1) supra). It has likewise found that the relief sought in plaintiff’s amended complaint has not been adjudicated by judgment in action numbered 495724 (finding (2) supra).
If the first finding of the trial court is correct then plaintiff was not entitled to any relief under the amended complaint. On the other hand, if the relief sought in plaintiff’s amended complaint had not been previously adjudicated the issues had not been determined from the evidence presented to the probate court and the trial judge in the present case should have determined the issues upon the evidence before him.
The rule is settled that where there are irreconcilable findings upon a material issue an appellate court can do nothing but reverse the case. (Mohun v. Timm, 20 Cal.App.2d 136, 139, 66 P.2d 701; Hill v. Donnelly, 43 Cal.App.2d 47, 52, 110 P.2d 135.) In view of the hopeless conflict in findings the judgment in the action to have a constructive trust declared must be reversed. If on a retrial judgment should be entered in favor of plaintiff, then the judgment in the partition action should be in favor of the defendant in such action and not the plaintiff. Hence the judgment in the partition action must also be reversed.
The judgment in each action is reversed.
MOORE, P. J., and WILSON, J., concur.