Opinion
Department One
Appeal from a judgment of the Superior Court of San Bernardino County and from an order refusing a new trial. John L. Campbell, Judge.
COUNSEL:
Paris & Allison, and Rolfe & Rolfe, for Appellants.
R. E. Houghton, Frank F. Oster, and J. W. Curtis, for Respondent.
JUDGES: Van Fleet, J. Harrison, J., and Garoutte, J., concurred.
OPINION
VAN FLEET, Judge
Action to quiet title. Plaintiff had judgment, from which and an order denying her motion for a new trial defendant appeals. 1. The objection of defendant to the introduction in evidence of the judgment-roll in the action of Riverside Land & Irrigating Company v. Cornelius Jensen was properly overruled. That was an action brought by the plaintiff here against the testator and predecessor in interest of this defendant to quiet plaintiff's title to certain lands, including the premises in controversy in this action, and in which final judgment was entered quieting plaintiff's title to the land in suit. It was not required of plaintiff to plead said judgment in order to be entitled to prove it. The complaint was in the usual form and was sufficient (Rough v. Simmons , 65 Cal. 227; Heeser v. Miller , 77 Cal. 192; Castro v. Barry , 79 Cal. 447); and such an allegation would have been improper, as it is never necessary in such an action to plead deraignment of title. That is matter of evidence purely. While as a general rule it may be necessary to plead estoppel by former judgment, that rule does not apply when, as under our system, no opportunity is afforded the plaintiff to plead it. It had no proper place in the complaint, but plaintiff could not be precluded from the benefit of it as matter of evidence on that ground. He was entitled to give it in evidence with the same effect as if given an opportunity to plead it specially. (Clink v. Thurston , 47 Cal. 27; Wixson v. Devine , 67 Cal. 345.)
2. The evidence in the case entirely failed to establish the defense of the statute of limitations, and the court below correctly found against defendant upon that issue. The effect of the judgment against Cornelius Jensen, defendant's predecessor, was to estop the latter, and the defendant who claims under him, from asserting title adverse to plaintiff anterior to the entry of that judgment (Freeman on Judgments, secs. 300, 309; Marshall v. Shafter , 32 Cal. 195; People v. Center , 66 Cal. 559, 562); and the period that elapsed intermediate the final judgment in the action of Riverside Land & Irrigating Company v. Cornelius Jensen and the commencement of the present action was not sufficient to ripen the adverse holding of this defendant into title by limitation. It follows, also, that the court below did not err in its rulings upon questions of evidence affecting this plea.
3. Nor did the court err in refusing defendant leave to amend her answer by setting [41 P. 41] up that the premises in dispute were included in the former judgment by mistake. Assuming that such defense could have availed defendant in avoiding the otherwise conclusive effect of that judgment, there was an entire want of any such showing as would have justified the court in granting such leave.
Judgment and order affirmed.