McClellan v. Lewis

This action grew out of the action-entitled Minnie McClellan and P. E. McClellan, Her Husband, Plaintiffs and Appellants, v. John T. Lewis, Defendant and Respondent, Civil No. 1713, ante, p. 64, [ 169 Pac. 436 ], in which the opinion of this court was filed October 22, 1917. That action was brought by plaintiffs therein to quiet title to a certain lot situated in the city of Stockton. It will appear from the opinion in that action that the defendant relied upon a contract of sale executed by the said F. E. McClellan to the said Lewis as trustee of the Stockton Grove No. 118, United Ancient Order of Druids; that on April 1, 1913, the defendant Lewis, on behalf of said Grove, brought an action, No. 10,741, in the superior court of the county of San Joaquin against the plaintiff herein and her said husband for the conveyance of said property, sufficiently alleging facts to justify specific performance; that both of said defendants in that action answered, but neither of them made a denial that the property in controversy was community property; that thereafter said case came on for trial on May 29, 1913, both defendants being represented by counsel and at the conclusion of the trial, the court announced. its judgment in favor of the plaintiff and directed findings to be prepared. Thát findings were prepared by both parties a'nd presented to the judge of the court; that the findings prepared by plaintiff in the action were adopted by the judge on the twenty-eighth day of June, 1913,"and judgment was duly signed and filed on that date and was docketed on July 13, 1913; that by said judgment it was adjudged that the real property in question was the community property of the said Frank E. and Minnie McClellan; that the contract of sale was entered into as set out

The foregoing and some other facts in the said action No. 10,741 are set forth in the plaintiff’s amended complaint in the present action, but it is alleged that at the close of the trial of said action last referred to the court announced from the bench “that Minnie McClellan did not sign the agreement that plaintiff seeks to have specifically enforced, and the judgment of the court can only be that Mr. McClellan execute the deed; that there is nothing upon which the court could direct Minnie McClellan to execute a deed; that the court is satisfied that Minnie McClellan is not in this case; she is entitled to judgment for any costs she has; and the attorney for plaintiff (Max Grimm) will prepare without delay the findings and decree in accordance with these instructions.” It is then alleged that the attorney for plaintiff, the said Max Grimm, “willfully neglected and refused to prepare or present said findings and decree to the court for a period of about thirty days, and until he knew that the attorney for Minnie McClellan had left the state for a three months’ absence; and that then, in the absence of said attorney, and on the twenty-eighth day of June, 1913, and for the purpose of taking advantage of the said Minnie McClellan in the absence of her attorney, and of deceiving and imposing upon the judge who tried said case, and of thereby injuring and defrauding the plaintiff herein, as one of the defendants in said case, and of depriving her of all her right and title to said real property, presented to the judge who tried said case in the said superior court the findings and decree as drawn by him and as they now appear in said case, and-which contain, among other things, the following findings, to wit: That the said defendant, Minnie McClellan, did not sign or execute the said agreement with Stockton Grove No. 118, U. A. O. D.; that the said Minnie McClellan has no title to the aforesaid described real property, and. her claim and interest therein is subject to and inferior to the rights and title thereto of the plaintiff, Lewis, and that all the material allegations of the answer of the said Minnie McClellan are not true and are not sustained by the evidence.” It is

It is further alleged that the plaintiff herein, through her attorney; heard the said original decision of the court as made at the close of the trial and believed that the findings and decree therein would be made and entered in accordance with said decision, “and that by reason thereof the plaintiff herein, as one of the defendants in said case, allowed her time to appeal from said judgment in said case to expire without taking such appeal or preparing the record for the same by bill of exceptions or otherwise; and that after such right of appeal had lapsed, she discovered the aforesaid fraudulent and deceitful acts whereby said decision was procured and entered, and that the same was so rendered and entered without the knowledge or consent of the plaintiff herein, and not by reason of any negligence on her part.” It is further alleged that the plaintiff herein, on June 30, 1913, while actually residing on the property with her husband, duly made, executed, and acknowledged a declaration of homestead upon the land and premises, and on said date

It is further alleged that since the rendition of said judgment as aforesaid, “the said defendant and his attorney have repeatedly disturbed, annoyed, and threatened to eject and remove plaintiff, who is and at all times herein named and referred to has been an invalid, from said premises which she claims and occupied as a homestead, and have taken execution out of said superior court in said case; . . . whereby the sheriff of said county was thereby falsely and' fraudulently authorized and empowered to remove and eject plaintiff from her said homestead; and that in pursuance thereof the said sheriff, under the instructions of said defendant and his said attorney, has been upon said premises, attempted to eject, and threatened to eject and remove plaintiff from her bed and her said homestead, and forcibly take possession of the same for the said defendant, and has repeatedly harassed and annoyed plaintiff with notices and demands for such possession and threats of ejectment, whereby plaintiff has been and is damaged by the rendition and entry of said false, fictitious, and. fraudulent judgment and the said proceedings had and taken thereunder in the sum of five thousand dollars.”

The prayer of the complaint is for judgment in the sum of five thousand dollars and her costs of suit; that the aforesaid judgment entered in the said case of John T. Lewis, Plaintiff, v. F. E. McClellan and Minnie McClellan, Defendants, of date June 28, 1913, “be reviewed, modified, and changed so as to conform to law and with the original announcement thereof by the said superior court, and in the following particulars: 1. That the findings and conclusions of law be made to recite that the plaintiff therein, John T. Lewis, is not entitled to specific performance or any relief whatsoever against the defendant Minnie McClellan, and that she is entitled to judgment for her costs herein incurred.” 2. That the judgment therein be made to recite that plaintiff is not entitled to specific performance and that plaintiff herein is entitled to judgment for costs. 3. That the “interpolation that the defendant Minnie McClellan has no

An amendment to the amended complaint was made by leave of court to the effect that the said contract of sale was intended to be signed by both McClellan and his wife, and that it was understood that until it was so signed by both, it was to be ineffectual for any purpose, and that thereafter and before the said contract was signed or executed- by both of said last-named parties, “the same was canceled and annulled; and that by reason thereof, the same never became binding upon either or any of the proposed parties thereto.”

A demurrer on general and specific grounds was overruled and the defendant answered: Denied that on the first day of April, 1913, or at any time, the defendant commenced an action against the McClellans to enforce the specific performance of an unjust or unreasonable contract or that the said contract was unfair or the consideration inadequate. Alleged that at the time of the execution of said agreement, the said realty was the community property of the said McClellan and his wife. Denied the averment of the amended complaint that the real property “had been purchased largely with moneys. that plaintiff had received from her deceased father’s estate, and that it was in truth and in fact, or in truth or in fact, her individual property.” Denied that said plaintiff was at said time or at all entitled to select and claim said property as a homestead. Denied that the plaintiff herein did at any time “duly select and claim or claim as her homestead under and by virtue of the laws of this state, said real property.” Denied the allegations as to what occurred at the time of the close of the trial referred to in

■ Defendant denied that he willfully or at all refused to prepare or present the proper findings and decree to the court “for a period of about thirty days and until or until he knew that the attorney for Minnie McClellan had left the state for a three months’ absence”; denies that “on the twenty-eighth day of June, 1913, or at any time or at all, and for the purpose or for the purpose of taking advantage of the said Minnie McClellan in the absence of her attorney and of deceiving and imposing or of deceiving or of imposing upon the judge who tried the said cause, or thereby or of thereby injuring and defrauding or of injuring or of defrauding the plaintiff herein, as one of the defendants in said case, and of depriving her or of depriving her of all her right and title or right or title to said real property, presented to the judge who tried the said cause in the said superior court, the findings and decree or the findings or decree in said case, or as they now appear in said case, but, on the contrary, said defendant avers that said findings and conclusions of law and judgment as they are now, were drawn, prepared and submitted to said court by said attorney Grimm, for signing without any fraud or deceit and without imposing upon said court and without any purpose on the part of said attorney or the plaintiff in said case, of unlawfully, wrongfully, or fraudulently depriving her of any rights to said property.”

Other of the accusatory averments of the amended complaint are also denied, and defendant alleged “that said attorney for the plaintiff in said case, well knowing that the said oral remarks and announcements of said trial judge in said case at the conclusion of said trial do not and did not constitute the judgment and decision in said case, and well

Defendant avers that the only notices and demands sent to or made upon said Minnie McClellan in the said action above referred to were sent and made in accordance with the lawful judgment and decree of said court in said case, and denies that said plaintiff in this action has been damaged in the sum of five thousand dollars or any sum whatsoever by reason of any of the acts or conduct of the said Lewis or his attorney, Grimm. Defendant also pleads in bar of the action all the proceedings, findings, and judgment had in the action of Lewis v. McClellan above referred to, numbered 10,741. For further answer, also, defendant alleges the pendency of an -action commenced by the said Minnie McClellan and her husband' against the said John T. Lewis, defendant herein, on November 12, 1913, in said court, said action being numbered 10,943, in which the plaintiffs seek to have the title to said property quieted and their homestead rights determined. That the said defendant Lewis has appeared in said action and filed an answer and cross-complaint therein; that the said action, numbered 10,943, is between the same parties as the action numbered 10,741, and that the subject matter of the action in both cases is the same; that said action is at issue of fact and is undetermined.

The present cause was tried by the court without a jury and the court made findings in favor of the defendant herein and judgment was accordingly entered, from which plaintiff appeals. Among the findings are the following: ‘ ‘ That at no time subsequent to the trial of said action No. 10,741, or at any time or at all, did the attorney for the plaintiff Lewis in

“That the said judge was not deceived or imposed upon by the said Max Grimm, or any other person, as to the contents of the said findings, and nó fraud, deceit, or imposition was committed upon said court by any person in connection with the signing of said findings, or in procuring said judgment in said action No. 10,741.

11 That the said judgment in said action No. 10,741 was not false, fictitious, fraudulent, wrong, absurd, erroneous, or inconsistent, but was supported by the evidence therein and was obtained without fraud, mistake, inadvertence, or imposition, and is, in all respects, a good and valid judgment.

“That in and by said judgment in the case 10,741, it was and is adjudicated that the real property in question herein was the community property of Frank E. and Minnie McClellan. That the purchase price agreed upon of $4,250 was a fair and adequate consideration and value for the said property; and said contract was just and reasonable between said Grove and said F. E. McClellan.

“That said plaintiff, Minnie McClellan, did not suffer any damages whatsoever by reason of said findings, conclusions of law, or judgment rendered, filed, and entered in said action No. 10,741.”

As conclusions of law, the court found that plaintiff “is not entitled to recover any judgment for damages, and is not entitled to have the findings, conclusions of law, or judgment in said action No. 10,741 amended, modified, changed, or reformed, nor to any other relief from the defendant and the court further finds and decides that the defendant, John T. Lewis, have judgment for his costs incurred herein.”

We think there is ample evidence in the record to support the findings of fact. Upon the principle stated in Bacon v. Bacon, 150 Cal. 477 , 484, [ 89 Pac. 317 ], that a party may have relief against a judgment on the ground of fraud or mistake, it is contended that it sufficiently appears from what occurred at the conclusion of the trial in the-case of Lewis v. McClellan that the findings and judgment, as entered in that

We do not think it reasonably inferable from the oral statements of the judge at the close of the trial in Lewis v. McClellan, that he was precluded from making findings to meet the issues in accordance with the facts. The statute requires that the decision of the court “must be given in writing and filed with the clerk” (Code Civ. Proc., sec. 632); and “in giving the decision, the facts found and conclusions of law must be separately stated. Judgment upon the decision must be entered accordingly” (Code Civ. Proc., see. 633). The remarks of the court touching the question of costs and Mrs. McClellan’s relation to the case were but the informal views of the court, subject to future modification when it came to make its findings, “as only properly they could be found, in the formal findings of fact and conclusions of law. ’ ’ (Montecito Valley Co. v. Santa Barbara, 144 Cal. 578 , 595, [ 77 Pac. 1113 ].) In Wadleigh v. Phelps, 149 Cal. 627 , 645, [ 87 Pac. 93 ], the court had rendered a written opinion in which it said: “Let each party herein pay his, her, or their own costs.” Subsequently the court made findings and entered judgment thereon that “plaintiffs recover their costs incurred in this action.” There the claim was made that “the court having announced its views as to the costs in the written opinion, could not in the findings and judgment make different provision from that indicated in the opinion.” The supreme court said: “This written opinion was, however, no part of the decision in the case, cannot be treated as such, and was entirely without legal effect.”

That the findings were not made through fraud or mistake was fully supported by the evidence, and that they were framed to meet and were based on the issues in the case is clearly shown.

Plaintiff’s alleged rights arising from the homestead filed by her, from her claim that the property was not community property but was purchased with her money, from the fact that she did not sign the contract of sale—in fact, every claim advanced by her in support of her title to the property was • adjudicated and decided against her contention in the action

Plaintiff has failed to establish the truth of the averments in her amended complaint. The judgment is therefore affirmed.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 24, 1917.