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District Court of Appeal, Second District, Division 1, California.


Civ. 15414.

Decided: October 29, 1946

George R. Larwill and Charles W. Wolfe, both of Los Angeles, for appellants. John F. Poole, of Los Angeles, for respondent.

This is an appeal from an order denying a petition for a writ of certiorari.

The only issue involved is whether the municipal court had jurisdiction to issue a certain order of restitution in an unlawful detainer action in the municipal court.

The pertinent facts are as follows:

In 1943 appellants purchased the premises in dispute. In October of that year, a certificate of eviction was obtained from the OPA authorizing the eviction of respondent, who occupied the premises as tenant on a month-to-month basis. Respondent was permitted to occupy the premises until November 16, 1944. At that time, due to the failure of respondent to vacate the premises, the action in unlawful detainer was commenced. Plaintiffs, appellants here, obtained judgment on November 29, 1944 and the premises were ordered restored to plaintiffs. A stay of execution postponed possession until December 27, 1944. On or about December 26, 1944 respondent vacated the premises; furniture and belongings of the defendant tenant were removed. Thereafter the property was the home of plaintiffs. On February 9, 1945, defendant filed a notice of appeal from the judgment. There the case rested until August 10, 1945 when a bill of exceptions or statement on appeal was filed. October 11, 1945 the judgment was reversed and the cause, ‘remanded for a new trial, appellant to recover costs on appeal’. On October 22, 1945, plaintiffs made a motion for dismissal. The court continued the matter for a hearing, whereupon plaintiffs, on the same date, namely October 22, 1945, dismissed the action in the manner and by authority of section 581 of the Code of Civil Procedure; the dismissal was then and there duly entered by the clerk. Subsequently, defendant filed a supplemental answer; no order or permission of the court so to do was first obtained. Later, defendant made a motion for restitution of the premises which, as noted above, had been vacated by defendant on December 26, 1944; on November 19, 1945 said motion was granted. Plaintiff then petitioned the superior court, in an original proceeding, for a writ of certiorari, which was neither granted nor denied but, instead, was disposed of as follows, ‘We therefore affirm the order of restitution.’ The opinion also recites in substance that certiorari was the proper remedy and that the municipal court in ‘restoring the evicted defendant to possession’ had not abused its discretion. It will be assumed therefor, for the purposes of the appeal herein, that the superior court determined that the municipal court had jurisdiction to make the order of restitution and, in so doing, that there was no abuse of discretion, for which reasons, it will also be assumed, the petition for the writ of certiorari was denied. Manifestly, there was no authority, nor indeed, was there any need, in the certiorari proceedings, to ‘affirm the order of restitution’, as that expression generally applies.

In the opinion accompanying its judgment in the certiorari proceedings, the court cited Hansen v. d'Artenay 13 Cal.App.2d, 293, 57 P.2d 202, and Bank of America v. McLaughlin, 37 Cal.App.2d 415, 99 P.2d 548. The Hansen case was an action to quiet title and the appeal was from an order denying a motion for restitution. There the court noted [13 Cal.App.2d 293, 57 P.2d 203], ‘It is a general rule that a party, deprived of property under a judgment, reversed on appeal, is entitled to its restitution, and if restitution is not made by the appellate court, he may obtain possession by motion duly made in the trial court. 2 Cal.Jur. 1062, et seq., and cases cited. This rule is not absolute and unyielding and is subject to a well-recognized exception. In Spring Valley Water Works v. Drinkhouse, 95 Cal. 220, 30 P. 218, 219, the Supreme Court, in discussing this question, said: ‘It is insisted that the reversal of the judgment gives appellant the absolute right to a restitution of the premises, but the wording of the statute will bear no such construction. The section is not mandatory upon the court, but the power conferred thereby is to be exercised when the circumstances of the case call for the use of a judicial discretion.’ See, also, Yndart v. Den, 125 Cal. 85, 57 P. 761.' The Bank of America case was an unlawful detainer action and the appeal was from the judgment. In connection with a motion for restitution, the court declared [37 Cal.App. 415, 99 P.2d 550], ‘the moving party has no absolute right to an order for restitution but the granting or denying of the motion rests in the sound discretion of the court to which the motion is addressed’. The foregoing cases, although they confirm well-known general principles, have no application to the question presented herein, as will later appear. In said superior court opinion also appears the following:

‘The further circumstance, that the plaintiffs dismissed their action, after the judgment which provided for the defendants' removal had been reversed, did not deprive the trial court of jurisdiction to restore the defendant to possession. A dismissal ends the action for most purposes, but not all. Proceedings incident to awarding the defendant costs, for example, may still be carried on. Spinks v. Superior Court, 1915, 26 Cal.App. 793, 148 P. 798; and see Matson v. Fortuna High School Dist., 1921, 54 Cal.App. 586, 202 P. 167. No doubt the court could, after a dismissal, release exhibits which had been received in evidence, or take action to dispose of any money that had been deposited. A plaintiff should not be enabled, by a dismissal of his action immediately after a judgment in his favor has been reversed, protect the gains, ill gotten because obtained under an erroneous judgment.’

With regard to the relation of ‘costs' to ‘jurisdiction’, it should be emphasized that the matter of ‘costs' is not the test of jurisdiction. Costs are merely incidental and more or less clerical. The Spinks case [26 Cal.App. 793, 148 P. 799] cited in the opinion of the superior court as noted above, was a proceeding to collect costs after dismissal and there the court declared, with regard to sec. 581, C.C.P., ‘On the other hand, the petitioner asserts that a dismissal so made does not interfere at all with his right to have a judgment following it entered, as he did, which would secure to him the expenses incurred in the action, and which were in their nature proper costs. We are in complete accord with this contention, and think that it proposes but a fair and reasonable construction for the statute. The dismissal as entered by the clerk upon the application of a plaintiff in such cases determines that action in favor of the opposite party; that suit is then forever ended. (Italics added.) While the matter of the recovery of costs is one which rests wholly upon the authority of the statutes, it cannot be contemplated that the Legislature, having provided authority and means for the securing of costs to litigants, intended to leave a defendant remediless against a plaintiff who chose to bring an action and put a defendant to great costs in preparing to meet the same and then dismiss the suit.’ Thus, even in the opinion relied on, the court declares the law to be that, upon filing the dismissal, ‘that suit is then forever ended’, except as to the collection of costs.

It is also noteworthy that, inasmuch as no moral question was involved in plaintiff's petition for the writ, the observation that plaintiff in such circumstances should not be entitled to prevail because such ‘gains' would be ‘ill gotten’, manifestly referred to a subject clearly beside the issue. Moreover, the record is destitute of evidence suggesting any wrong, legal or moral, on the part of plaintiff.

Respondent submits the ‘question at issue’ in the within appeal as follows: ‘The only real question at issue is jurisdiction. Plaintiff claims jurisdiction to put defendant ut, hence of necessity the court had jurisdiction to put defendant back.’ The argument is untenable, for it fails to take into account the action of the parties; and the law with relation thereto. Jurisdiction does not necessarily depend alone on the action of the court; jurisdiction may be acquired or lost by action of the parties. In the within action plaintiff filed a dismissal after the judgment was reversed and the cause remanded for a new trial. This the plaintiff had the right to do; and the dismissal ended the litigation. Whatever the municipal court did herein thereafter, was void ab initio; it had lost jurisdiction.

Upon the reversal of the judgment, the parties were restored to their original rights. Richards & Knox v. Bradley, 129 Cal. 670, 62 P. 316. The parties were in the same position as if the case had never been tried. Sharp v. Miller, 66 Cal. 98, 4 P. 1065. In Estate of Pusey, 177 Cal. 367, at page 371, 170 P. 846, at page 847, appears the following, ‘When an order has been reversed the effect is that: ‘It no longer had any vitality or force, and the result was to leave the proceeding where it had stood before that order was made.’ Estate of Mitchell, 126 Cal. 248, 250, 58 P. 549. In Ashton v. Heydenfeldt, 124 Cal. 14, 56 P. 624, 625, speaking of a decree which had been reversed, the court said: ‘but that decree having been reversed—vacated—on appeal, the matter stood as though no decree had ever been made.’ Many casts decide the same proposition'. (Citing cases.) And in Central Savings Bank of Oakland v. Lake, 201 Cal. 438, at page 443, 257 P. 521, 523, the court declared, ‘It has long been the law of this state that an unqualified reversal remands the cause for a new trial (Falkner v. Hendy, 107 Cal. 49, 54, 40 P. 21, 386) and places the parties in the trial court in the same position as if the cause had never been tried, with the exception that the opinion of the court on appeal must be followed so far as applicable’. The foregoing appears to be the general rule (126 A.L.R. 305); and this is especially true when authorized by statute. 5 C.J.S., Appeal and Error, § 1974, p. 1532. There can be no question as to plaintiff's right to dismiss the action. The judgment and order of reversal contained no directions; it merely remanded the cause for a new trial. The case, therefore, was in the same position as if it never had been tried and, the defendant having asked for no affirmative relief, the right in plaintiff to dismiss was absolute.

Again referring to the opinion and judgment of the superior court in the certiorari proceedings, the court used the expression ‘evicted defendant’. The record herein reveals that defendant was neither in fact nor in law ‘evicted’. It appears from the record and is not disputed that defendant, after judgment was pronounced in the trial of the action, surrendered the premises, established a residence eslewhere, removed the belongings and furniture, all without the necessity of resorting to any of the processes available to plaintiff, if necessary, in an unlawful detainer action. Black v. Knight 176 Cal. 722, 169 P. 382, 384, L.R.A.1918C, 319 is particularly applicable to the situation here presented, and in that connection the court declared that, ‘Until the landlord does so enforce the judgment, he does not actually disturb the possession and beneficial enjoyment, and the case in this respect is just as it was before entry of judgment. The landlord is not compelled to carry the judgment into execution simply because it has been given and entered. He may well decide to withhold execution until the final determination of his action—until it has been finally determined that the tenant has forfeited his term, and that he may treat the term as forfeited and safely enforce his judgment. The tenant has no right to assume from the mere entry of judgment that the landlord intends to do otherwise. Authorities are, of course, ample to the effect that the tenant may accept not only the prosecution to judgment of such an action, but also the mere institution thereof, as such an election on the part of the landlord to terminate the lease that he will be justified int reating the lease as ended, and may yield possession of the premises and be free from further liability under the terms of the lease. Such is the meaning of the declaration in section 675 of Underhill on Landlord and Tenant, relied on by plaintiff, where Jennings v. Bond, 14 Ind.App. 282, 42 N.E. 957, is cited, the same being an action for rent after a suit in ejectment maintained by him and after a subsequent offered surrender of the premises by the tenant. This, however, is an entirely different proposition from the one involved in this case. Here the tenant so yielding possession without being required to do so is insisting that the act of the landlord in prosecuting his action to judgment shall be treated as an eviction, and the landlord held liable to him for any loss suffered from his failure to enjoy the remainder of the term. To our minds neither reason nor authority warrants the holding that such position is correct, where the tenant actually abandons the possession without being compelled to do so under any process issued and served under the judgment in the unlawful detainer proceeding, and the proceeding was brought and maintained in good faith and without malice.’

For the foregoing reasons the judgment is reversed with directions to issue the writ in accordance with the views herein expressed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.

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