NICHOLSON ET UX v. HENDERSON

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District Court of Appeal, Second District, Division 2, California.

NICHOLSON ET UX. v. HENDERSON

HENDERSON v. NICHOLSON ET AL.

Civ. 14304.

Decided: February 25, 1944

Earl Oakley and George R. Wickham, both of Los Angeles, for appellants. William H. Haupt, of Los Angeles, for respondent.

This is an appeal, after trial before the court without a jury, from a judgment on a cross–complaint quieting respondent's title to a parcel of land.

The essential facts are these:

Appellants filed a complaint seeking to impress a trust and to quiet title to a parcel of land. Respondent filed an answer to the complaint, and also sought by cross–complaint to have her title quieted to the parcel of land described in the complaint. At the time of the trial the court granted respondent's motion for a nonsuit on the complaint, which order was entered in the clerk's minutes March 12, 1943.1 This was a final and appealable order from which no appeal has been taken. McColgan v. Jones, Hubbard & Donnell Inc., 11 Cal.2d 243, 247, 78 P.2d 1010; Spinner v. L. A. Ry. Corp., 52 Cal.App.2d 679, 685, 126 P.2d 940; Nulsen v. Nulsen, 3 Cal.App.2d 407, 408, 39 P.2d 509. Because the time for appeal has elapsed this order is final.

After the granting of respondent's motion for a nonsuit the cause proceeded to trial on the cross–complaint and answer thereto. When the trial was completed judgment was entered upon the cross–complaint in favor of respondent.2 The present appeal3 is from this judgment only.

Appellants' entire argument is directed to alleged errors of the trial court in granting respondent's motion for a nonsuit on the complaint. They do not present any authority or argument showing error in the entry of the judgment in favor of respondent on the cross–complaint.

This is the sole question necessary for us to determine:

On appeal from a judgment on a cross–complaint may this court review alleged errors in the granting of a motion for a nonsuit on the complaint?

This question must be answered in the negative.

The rule is established in California that an appeal from a judgment on the merits does not authorize the appellate court to review any other decision or order from which an appeal might have been taken. Sec. 956 Code of Civil Proc.; Wells Fargo Bank & U. T. Co. v. Broad, 3 Cal.App.2d 45, 48, 39 P.2d 241; Ratliff v. Ratliff, 116 Cal.App. 39, 41, 2 P.2d 222. See also, Bohn v. Bohn, 164 Cal. 532, 539, 129 P. 981; Chard v. O'Connell, 48 Cal.App.2d 475, 476, 120 P.2d 125; Estate of Gurnsey's Estate, 61 Cal.App. 178, 180, 214 P. 487; Gellert v. Bank of Calif., Nat. Ass'n, 107 Or. 162, 214 P. 377, 386.

Applying the foregoing rule to the facts of the present case, it is clear that the alleged errors of the trial court in granting respondent's motion for a nonsuit cannot be considered by us upon the present appeal from the judgment in favor of respondent on the cross–complaint.

Since appellants do not urge, nor do we find, any error in the granting of the judgment from which the appeal is taken, the judgment is affirmed.

It is so ordered.

I dissent. Respondent is the holder of the record title to the real estate in question. Appellants, basing their action on claims of possession and of a written promise to convey, ask that respondent be adjudged to hold the property in trust for them and that a conveyance to them be ordered by the court. The trial court found that the claims of appellants are barred by laches and by sections 318, 337, 339 and 343 of the Code of Civil Procedure. In my opinion the evidence received in support of appellants' complaint is so involved with the evidence upon which the findings are based that all of the rulings of the court of which complaint is made should be reviewed on this appeal.

FOOTNOTES

1.  The minute order read in part as follows:“Defendant's Motion for a nonsuit on the Complaint is granted on the grounds of insufficiency of the evidence. * * *”

2.  Omitting the title of the court and cause, the judgment read as follows:“Judgment“(On Cross–complaint)“The above–entitled cross–complaint, and the action thereon, duly and regularly came on for trial before the above entitled court, in Department 30 thereof, before the Honorable Edward R. Brand, judge presiding, without a jury, on the 10th day of March, 1943, William H. Haupt, Esq., appearing for the cross–complainant, and Messrs. Earl Oakley, Esq., and George R. Wickham, Esq., appearing for the cross–defendants, and evidence having been adduced, and the court having heard and considered such evidence and the arguments of counsel thereon, and the cause having been submitted for decision, and the court having duly made and caused to be filed herein its written findings of fact and conclusions of law:“Now, therefore, by reason of the law and the findings of fact and conclusions of law aforesaid,“It is ordered, adjudged and decreed that the title of the cross–complainant Mabel Scott Henderson as Administratrix of the Estate of Armour Ray Henderson, deceased, and of the said Estate of Armour Ray Henderson, deceased, in and to the following described property, situated in the County of Los Angeles, State of California, be, and it hereby is, forever quieted as against the cross–defendants William M. Nicholson and Sephia B. Nicholson, and each of them; said real property being bounded and described as follows, to–wit:“The Southwest Quarter (SW1/4) of the Southeast Quarter (SE1/4) and the Southeast Quarter (SE1/4) of the Southwest Quarter (SW1/4) of Section Ten (10), in Township Fourth (4) North, of Range Seventeen (17) West, of the San Bernardino Base and Meridian, containing eighty (80) acres, according to the Official Plat of the Survey of the said land returned to the General Land Office by the Surveyor–General.“It is further ordered, adjudged and decreed that the cross–complainant Mabel Scott Henderson, as Administratrix of the Estate of Armour Ray Henderson, deceased, have and recover from the cross–defendants William M. Nicholson and Sephia B. Nicholson her costs and disbursements incurred in the above entitled action, amounting to the sum of $63.25.“Dated at Los Angeles, California, this 22 day of March, 1943.“Brand“Judge of the Superior Court.”

3.  Omitting the title of the court and cause, the notice of appeal read thus:“Notice of Appeal“To the Cross–Complainant, Mabel Scott Henderson, as Administratrix of the Estate of Armour Ray Henderson, deceased; and, to William H. Haupt, Esq., Her Attorney:“You, and each of you, will please take Notice that the cross–defendants in the above entitled action, William M. Nicholson and Sephia B. Nicholson, his wife, hereby appeal to the Supreme Court of the State of California from that certain judgment herein made and entered in the Superior Court of the State of California, in and for the County of Los Angeles, in favor of said cross–complainant above named and against said cross–defendants above named, and which judgment was entered on the 23rd day of March, 1943, in Book 1322, Page 325 of the Book of Judgments in the office of the Clerk of the above entitled Superior Court.“Dated this 19th day of May, 1943.“Earl Oakley and George R. Wickham,“By Earl Oakley“Attorneys for cross–defendants.

McCOMB, Justice.

MOORE, P. J., concurs.