Edwards v. Bodkin

267 F. 1004, 1919 U.S. Dist. LEXIS 652

• Court: District Court, S.D. California
• Decided: April 9, 1919
• Docket: No. C-55
• Status: Published

Opinions

TRIPPET, District Judge.

A complaint in this suit was passed upon by the Circuit Court of Appeals and reported in 249 Fed. 562, 161 C. C. A. 488. The complaint has been amended, but not in any material respect as compared with the complaint passed upon by the said court. The facts, as stated in the opinion in that report, were proven at the trial. The plaintiff offered no proof regarding the misconduct of any of the officers in the land office. It follows, therefore, that the plaintiff is entitled to a decree as prayed for in the complaint, unless the pleas in bar pleaded by the defendant defeat that right.

[1, 2] The first plea sets up a judgment obtained in the superior court of Riverside county, in an action wherein the defendant here, Patrick Henry Bodkin, was plaintiff, and the plaintiff here, William B. Edwards, was defendant. The facts concerning that suit are these: Suit was filed June 3, 1912. It was an action in ejectment to recover possession of the land in controversy in this suit. The defendant answered the complaint, and a trial was had on October 18, 1912. Judgment was entered in the cause on November 12, 1913, wherein it was adjudged that the plaintiff (Bodkin) recover of the defendant therein the possession of the land described in the complaint and $50 damages for rents and profits. On February 4, 1914, the defendant in the said cause filed a notice of appeal to the Supreme Court of California, and on the same day filed an undertaking on appeal. This notice of appeal and bond in pursuance thereof removed the case to the Supreme Court. The court is of the opinion that the plea in bar, as above staled, does not -defeat the right of plaintiff’s recovery. The action in ejectment was merely to recover possession of the land, based upon the legal title; and, since the appeal has not been determined, the action is still pending.

[3] The defendant also pleads in bar a judgment in a suit in the superior court of the state of California, in and for the county of Riverside, entitled William B. Edwards v. Patrick H. Bodkin, being the same parties here in litigation. The facts concerning that suit, in so far as material here, are as follows:

A demurrer was filed to the first amended complaint on April 5, 1916. This demurrer was upon the following grounds: Eirst, that, the court had no jurisdiction of the subject-matter of said action; and, second, that said first amended complaint did not state facts sufficient to constitute a cause of action. On June 8, 1916, the court made an order in words and figures following:

“Demurrer to amended complaint sustained, 10 days.”

On June 30, 1916, the court entered the following:

“ * * * An order having been entered in this action on the 8th day of June, 1916, sustaining the demurrer to the amended complaint herein and granting plaintiff 10 days within which to amend, and plaintiff having failed to further amend his complaint, it is hereby ordered and adjudged that the amended complaint herein be and the same hereby is dismissed, and that the defendant have and recover its costs of the said plaintiff taxed at fifty and 4%oo dollars. Dated June 30, 1916. Hugh H. Craig, Judge.”

Other proceedings were had in said cause, with a view of having said judgment set aside. A motion to vacate the judgment was made. This motion to vacate the judgment has never been disposed of by the superior court of Riverside. The rule of res adjudicata is stated by section 1911, C. C. P., as follows:

“That only is deemed to have been adjudged in a former judgment which apipears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.”

It will be seen that there are two grounds specified in the demurrer: One, that .the court did not have jurisdiction; and the other, that tire complaint did not state facts sufficient to constitute a cause of action. The judgment sustaining the demurrer does not specify upon what ground the court sustained it. If the demurrer was sustained on the ground that the court had no jurisdiction, there would be no judgment upon the merits. Since it cannot be determined by an examination of the record upon what ground the court sustained the demurrer, it must follow that the judgment is not a bar. Besides, the proceedings show, that the plaintiff was given leave to amend the complaint when the court made an order sustaining the demurrer. The plaintiff, however, never amended. It cannot be determined from the judgment entered in that case whether or not the court dismissed the complaint by reason of the failure of plaintiff to amend or by reason of the fact that the demurrer had been sustained to the amended complaint. It maj'- well be that the court on June 30, 1916, finding that the record showed that the plaintiff had been given leave to amend and had not amended, thought the case ought to be dismissed for want of prosecution by the plaintiff. The judgment shows that the complaint was dismissed, but why it was dismissed, whether by reason of the fact that the demurrer had previously been sustained, or by reason of the fact that the plaintiff had not amended, is not set forth. Therq is no judgment that the prayer of' the plaintiff’s complaint be denied, nor is there a formal decree of dismissal. It is plain that it does not appear upon the face of this judgment that the controversy was decided, or actually and necessarily included therein, or was necessary thereto.

For the reasons above stated, I am of the opinion that the last-mentioned suit is not a bar to the plaintiff’s right of recovery in this suit. Civil Code of Procedure, § 1911; Civil Code of Procedure, § 581; Goldtree v. Spreckles, 135 Cal. 666, 67 Pac. 1091; Kirsch v. Kirsch, 113 Cal. 56, 45 Pac. 164; Bissell v. Spring Valley Township, 124 U. S. 225, 8 Sup. Ct. 495, 31 L. Ed. 411; Smith v. McNeal, 109 U. S. 426, 3 Sup. Ct. 319, 27 L. Ed. 986; Russell v. Place, 94 U. S. 606, 24 L. Ed 214; Wiggins Ferry Co. v. O. & M. Railway, 142 U. S. 396, 12 Sup. Ct. 188, 35 L. Ed. 1055.

The plaintiff will prepare a decree as provided by the rules of the court.