Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Motion denied and stay dissolved. Rehearing Denied 24 Cal. 272 at 278.
Appeal from the District Court, Seventh Judicial District, Solano County.
This action was commenced February 18th, 1856, and judgment was rendered December 20th, 1862. It has been twice before appealed to the Supreme Court, and will be found reported in 7 Cal. 415, and 10 Cal. 456.
Defendant Jeans, in his separate answer, not only denied the allegations of the complaint, but set up that the defendants had not at any time possessed the land described in the complaint, or any part thereof, as joint or common occupants.
COUNSEL:
The defendant Jeans has shown no right to any of the land. He occupied only one hundred and twenty acres of the land from eighteen hundred and fifty-four until eighteen hundred and fifty-seven. This he occupied exclusively, yet he is included jointly in the judgment, and the same is against him for all the accumulated damages on five hundred acres (four times as much as he ever touched), for one year before he wason the land, and for six years after he left.
Such a judgment is evidently unjust. Jeans was only liable for the land he occupied, and for the time he occupied it, and he cannot legally be held to pay for the use of the land he never had nor claimed to have, which he never detained nor assisted to detain from the plaintiff for a moment, and with which he never in any capacity had any connection. Three hundred and eighty acres of the land Jeans never had any connection with for a moment, nor never was nor claimed to be a joint holder with the Longs.
Another objection to the judgment in this case is, that it is against defendants Longs, and in plaintiff's favor, for five hundred acres, yet during all the time, for years before the suit was commenced, and up to the present time, the plaintiff was in the full possession, use, and occupation of one hundred and eighty acres of the eastern portion of it, and to and in which the Longs claimed an interest.
It is respectfully submitted that this is error, as ejectment must be brought against the terre tenant. (Dutton v. Warschauer , 21 Cal. 609; Garner v. Marshall , 9 Cal. 268.)
The only action Ellis could maintainagainst the Longs as to the one hundred and eighty acres he had in possession would be to quiet his title against their claim under section two hundred and fifty-four of the Civil Practice Act.
Had the Longs no claim to the one hundred and eighty acres against which Ellis holds the present judgment, the judgment would do them no harm. But their deed and claim does cover it, and their right to it cannot be tried in an ejectment suit in which they are defendants and out of possession of the land, while Ellis is plaintiff and in possession.
The first point urged by appellants is that injustice has been done defendant Jeans, because he says that Jeans only had one hundred and eighty acres of the land in controversy.
The defendant Jeans was sued jointly with the defendants Longs and failed to demand a separate verdict, or in this case, there being no jury, separate findings at the trial, and is concluded by a general verdict or judgment. It was not for the plaintiff to apportion the wrongs committed by these defendants. When this case was before this Court first, the same point was made by counsel and was decided against them. (See Ellis v. Jeans , 7 Cal. 417, 418.)
It seems that this point has been too often decided to require argument, and, if erroneous, is the law of the case, and cannot be questioned now.
John Currey and M. A. Wheaton, for Appellants.
P. W. S. Rayle, for Respondent.
P. L. Edwards, also for Respondent.
JUDGES: Shafter, J.
OPINION
SHAFTER, Judge
By the Court, Shafter, J., on motion of Respondent to vacate judgment:
Ejectment. Motion by respondent to vacate the judgment of this Court reversing the judgment of the District Court and granting appellants a new trial on the respondent's filing a release of damages. The motion is objected to by the appellants on the ground that the new trial was granted not only for the reason that the damages were excessive, but for the further reason that the Court below found that the defendant had disseized the plaintiff of the whole of the five hundred acres sued for, when it appeared from all the testimony in the case that the plaintiff was himself in the actual possession and enjoyment of about one hundred and eighty acres thereof at the commencement of the action. To avoid this objection the respondent offers to release the one hundred and eighty acres from the operation of the judgment. If the particular location of the one hundred and eighty acres appeared either in the pleadings or by the findings we might order the modification upon the basis of the record, but there is nothing in either showing the location, and we are not at liberty to examine the evidence for the purpose of determining the location as a question of fact. To do so would be to exercise original rather than appellate jurisdiction.
Mr. Justice Currey, having been of counsel, did not sit on the trial of this case.