Altschul v. Doyle

Myrick, J.: The appeals in these cases were heard before Department two of this Court, and an opinion was filed March 17th, 1880, affirming the judgment and order of the Court below, and a hearing in bank has been granted. The substantial question at issue in the Court below was, and in this Court is, whether the plaintiff, Altschul, is barred of his recovery in the actions by the proceedings and judgment in a former action in ejectment commenced by Mary Polack against Lynch, Altschul, Mary Doyle, Eix, and others. In the last named action the defendants answered, alleging title in themselves and those under whom they claimed. During the trial the plaintiff dismissed the action as to Eix. At the close of the evidence the plaintiff dismissed the action as to Altschul, and moved to strike out all the documentary evidence showing dcraignment of title by Altschul from one Dorland. The defendants objected, on the ground that James Doyle and Mary Doyle were defending under the title of and by Altschul, they being his tenants and he defending for them, and that they were entitled to the benefit of his title. The Court overruled the objection, and struck out the evidence. The defendants, James and Mary Doyle, then moved the Court to open the case, and to allow them to show that they were the tenants of 'Altschul, and to prove his title. The Court denied the motion, and judgment was rendered dismissing the case as to Eix, Altschul, and James Doyle Sr.j and in their favor .for costs. Lynch moved for a new trial, which was granted, and the action was subsequently dismissed as to him. These dismissals left the case standing in favor of Mary Polack, plaintiff, versus Mary Doyle and James Doyle Jr., defendants, and judgment went for plaintiff and against defendants. In the cases at bar, the recovery in the former suit was pleaded in bar of these actions; and after hearing the evidence, the Court found that at the instance and motion of the plaintiff in the former action, said action was dismissed as to the defendants therein, Eix, Lynch, and Altschul, and by and upon motion of said Mary Polack, said Altschul was not permitted to defend the same for his tenant, James Doyle Jr., and all the title of said Altschul to the premises involved in said action was, upon [639] like motion, excluded from all consideration in said action, and that Altschul is not in these actions in any manner barred or estopped by the judgment in said former action from asserting his title to said lands. Judgment was rendered for plaintiff in both actions, and from the judgments, and from the orders denying motions for new trial, the cases are here. Upon these facts, wo are asked to hold that Altschul is barred by the recovery by Mary Polack in the former suit, and is estopped from denying that his title was adjudicated and passed upon therein. Various authorities are cited, but counsel for appellant relies mainly upon the decision of this Court in Gray v. Dougherty, 25 Cal. 266, and Valentine v. Mahoney, 37 id. 889. The latter case clearly announced the principle, (followed and approved in Russell v. Mallon, 38 Cal. 259) that if the landlord defends for and in the name of his tenant, and puts his title in issue in aid of his tenant’s right of possession, the judgment against the tenant is a bar to a subsequent action by the landlord against the party recovering the judgment, and the landlord is estopped from saying that his title is not adjudicated. So in Gray v. Dougherty: “It (the former judgment) is not only final as to the subject-matter thereby determined, but also as to every other matter which the parties might have litigated in the cause, and which they might have decided. It must appear, however, that the subject-matter or question was not only the same, but that it was submitted on its merits, and actually passed upon by the Court.” So in Valentine v. Mahoney: “ Mann, though not sued, defended the action, and his title was put in issue. In all cases in which the defendant is holding under a lease, and the lessor’s title is in issue, it is proper, if not necessary, that the latter (the lessor) should have an opportunity to participate in the defense, for no one is as competent to present and defend his title as he. The landlord ought not to be deprived of the possession by proceedings in which he could take no part.” The case proceeded upon the theory that the landlord did in fact take part in the controversy, and that his title was considered and passed upon. Sawyer, J., concurring, said: “'It would be dangerous to extend the rule to cases where there is nothing in the record tending to show that the landlord took the defense of the action upon himself. The parties to be [640] estopped ought certainly to be indicated by the record itself. It is sufficiently manifest from the record in this case, that Mann was the party in interest who made the defense for his own benefit in the name of his tenants.” And in Russell v. Mallon, the question was whether a judgment in an action of ejectment in which the landlord of defendant defends the action for and'in the name of his tenant, and puts his own title in issue, is admissible in evidence by way of estoppel. Held, yea, on authority of Valentine v. Mahoney. Admitting to the fullest extent the reasoning and the conclusions reached in those cases, not only is the appellant not aided thereby, but the record here shows that these cases are not within the principles there decided. Instead of the title of the landlord having been submitted, passed upon, and adjudicated, the landlord, having been made a party defendant, with an allegation of possession on his part, was dismissed from the action, the evidence of his title was stricken out, and the tenants were refused the benefit of that title. The record is not only not silent upon the subject, but it - affirmatively appears that the landlord’s title was not adjudicated. It is claimed that as there was evidence tending to show that the landlord was personally present at the trial, employed counsel for himself and his tenants, and practically made whatever defense was made, he was bound by the judgment, because he had a legal right to be heard, and if the Court committed an error in denying him that right, he had an appeal, and his failure to prosecute an appeal was a waiver of his right; and on the argument it was distinctly.insisted that, notwithstanding the fact that the plaintiff in the former action dismissed the suit as to Altschul, asked the Court to strike out the evidence of his title, and then objected to the defense of his title being made, thus inviting the Court to make an error, (if it were an error) yet, as Altschul, though no longer a party, did not appeal, he has had his day and is barred. We cannot accede to that proposition. We think that the bare statement of the proposition conclusively shows the answer. The case of Windsor v. McVeigh, 3 Otto, 274, though not similar in facts, is parallel in principle, so far as concerns the binding effect of the judgment. In proceedings before a Dis [641] trict Court, in a confiscation case, monition and notice having been issued and published, the appearance of the owner, for which they called, when made was stricken out, his right to appear being denied by the Court. Held, that the subsequent sentence of confiscation of his property was as inoperative upon his rights as though no monition or notice had ever been issued. The legal effect of striking out his appearance was to recall the monition and notice as to him. The Court says: “ Wherever one is assailed in his person or property, there he may defend, for the liability and right are inseparable. A denial to a party of the benefit of a notice, (i. e., to defend) would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, appear, and you shall be heard; and when he has appeared, saying, your appearance shall not be recognized, and you shall not be heard. The denial to a party in such a case of the right to appear is, in legal effect, the recall of the citation to him. It was not within the power or the jurisdiction of the District Court to proceed with the case, so as to affect the rights of the owner after his appearance had been stricken out, and the benefit of the citation to him thus denied. Jurisdiction is the right to hear and determine ; not to determine without hearing. And where, as in this case, no appearance was allowed, there could be no hearing or opportunity of being heard, and, therefore, could be no exercise of jurisdiction.” The findings of the Court below, on the other points made by appellant, are sustained by the evidence. Judgment and order affirmed. Morrison, C. J., Sharpstein, J., Ross, J., McKee, J., and Thornton, J., concurred.