ERICKSON v. BOOTHE

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District Court of Appeal, Third District, California.

ERICKSON v. BOOTHE.

Civ. 7486.

Decided: July 27, 1949

Lafayette J. Smallpage, Stockton, T. B. Scott, Modesto, for appellant. Edward T. Taylor, Modesto, for respondent.

This case is before this court for the fourth time—in this instance upon a petition for a re-hearing filed by counsel for Boothe, which petition was granted solely in order to clarify an apparent misunderstanding of counsel relative to the purport of the previous order of this court. Upon rehearing, the opinion of this court filed March 5, 1949, 203 P.2d 119, is modified, and the opinion as so modified is approved and adopted as follows:

This is the second of a series of appeals arising out of a controversy between Mazie Erickson, as executrix of the last will of Timothy H. Carlon, deceased, and respondent Boothe. The original action was for declaratory relief in regard to a lease entered into by the guardian of the estate of Timothy H. Carlon as lessor and by Boothe as lessee, and in particular a clause thereof giving the lessee an option to release the property upon compliance with certain conditions therein prescribed. The sole question presented in said action was whether or not the lessee had validly exercised the option which question was determined adversely to him by the trial court. On appeal the judgment was reversed without directions. See Erickson v. Boothe, 79 Cal.App.2d 266, 179 P.2d 611.

After the remittitur went down from this court a dismissal of the action was filed on July 21, 1947, on behalf of Mazie Erickson, as execcutrix, and on the same day Boothe Filed a motion in the trial court for judgment in accordance with the terms of the opinion of this court on the first appeal. Our opinion which reversed the judgment without directions held that Boothe had validly exercised the option to release the property. After a hearing on Boothe's motion the trial court entered judgment on October 3, 1947 which not only provided that Boothe was entitled to be restored to the possession of the property, as was proper in view of the opinion on the first appeal and the motion for judgment in accordance therewith, but in addition ordered an accounting of the rents, issues, and profits thereof by Mazie Erickson, as executrix, during the period in which she had possession of the premises as a result of the former erroneous judgment. It is from this judgment so entered in favor of Boothe that Mazie Erickson, in her representative capacity, has now appealed.

Appellant first asserts that the reversal without further directions had the effect of remanding the cause for a new trial; but upon a new trial she will amend her complaint to allege nonpayment of rent by respondent, the commission of acts constituting waste to appellant's damage, and the voluntary abandonment of the premises by respondent in accordance with an agreement with appellant that she would waive costs of suit and damages upon the issues above mentioned. Her contention is that a reversal without directions sets the case at large, and in support thereof relies upon cases such as Central Savings Bank of Oakland v. Lake, 201 Cal. 438, 257 P. 521, wherein it is held that an unqualified reversal remands the cause for a new trial and places the parties in the trial court in the same position as if the cause had never been tried.

However, it is also the rule that the opinion of the reviewing court must be followed as far as possible. Estate of Pusey, 177 Cal. 367, 170 P. 846. Turning then to our opinion on the former appeal it is readily apparent therefrom that at the original hearing it was conceded by Erickson that Boothe properly exercised his option to release the premises; that had Carlon lived Boothe had performed all of the conditions precedent to the exercise of his right to lease the premises, and continued occupancy thereof by Boothe would have been lawful. The opinion concluded with the following language: ‘* * * it being agreed that appellant [Boothe] has fully performed, the executrix was not entitled to a writ of restitution.’

By reason of the issues raised in the declaratory relief action and by virtue of the admissions appearing therein and in particular the stipulation of the parties as to all of the facts (which stipulation appears in said original proceeding), a new trial after the reversal by this court would have been a wholly idle and useless act. Obviously there remained no issue of fact to be reexamined upon a retrial, and hence the only question presented was one of law. Therefore the trial court properly followed the opinion of this court and entered judgment in favor of Boothe.

Furthermore, in considering appellant's contention, it is pertinent to note the record discloses that appellant has neither amended nor moved to amend her complaint, nor has she filed a separate action setting forth the alleged nonpayment of rent, acts of waste and voluntary abandonment of possession by the respondent, nor has she taken any steps to have the cause set down for a new trial. On the contrary, the record shows that appellant filed a dismissal of the original complaint for declaratory relief on the same date that respondent made his motion in the trial court for the judgment appealed from.

The voluntary dismissal of her action by appellant did not deprive the trial court of its inherent power to enter the judgment herein attacked. Schubert v. Bates, 30 Cal.2d 785, 185 P.2d 793. While appellant asserts that respondent voluntarily abandoned possession of the premises, the record discloses that he left the premises only after the order of the trial court entering judgment in the original action. Such action on the part of respondent did not constitute a voluntary abandonment so as to deprive him of his right to possession. Erickson v. Boothe, supra; Schubert v. Bates, supra. And while appellant additionally states in her brief that respondent agreed in writing to give up possession of the premises it is sufficient to state that the record fails to disclose any such agreement. In any event it is well established that the trial court has inherent power to order restitution of property to the party deprived thereof by its erroneous judgment. Schubert v. Bates, supra.

Appellant next contends that the trial court abused its discretion in entering the judgment without hearing evidence of the alleged nonpayment of rent, acts of waste, and abandonment of possession, which appellant asserts will be alleged in an amended complaint upon a new trial of the cause as set forth with regard to her first contention. However, as previously stated she has done nothing in this regard, but on the contrary dismissed her action. Moreover, the only issue raised by the pleadings was whether or not the option for renewal had been validly exercised. Therefore, such evidence sought to be introduced by appellant was outside the scope of the issues and was inadmissible. Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752.

The last contention of appellant is that the judgment is erroneous in that it embraces matters not placed in issue by the pleadings. Specifically, appellant contends that there was no issue raised as to any accounting of the rents, issues, and profits as ordered by the judgment. This contention is not without merit since it is the general rule that a judgment can only encompass matters put in issue by the pleadings. Hyde v. Hagen, 70 Cal.App.2d 517, 161 P.2d 242.

The record further discloses that on October 22, 1948, appellant Erickson filed a motion in this court to vacate the last mentioned judgment and to discuss the foregoing appeal in the event that this court should grant the motion. This court is not empowered to vacate the judgment of a trial court upon the motion of one of the litigants, such power being confined to the trial court under certain prescribed conditions, see Code Civ.Proc., secs. 473, 663, and even that court is deprived of its limited jurisdiction to do so by an appeal. (See 14 Cal.Jur. 1017.)

The observation of counsel for appellant, prefacing the concluding statement of her reply brief, cannot be denied—‘This case is becoming somewhat confusing.’ By reason of such confusion we feel impelled to reiterate what was in effect said in our previous opinion and the essence of the views expressed herein; that it is clear that Boothe is entitled to be restored to possession of the premises, and that portion of the judgment so decreeing must be affirmed; that whatever claims either party may have against the other should be the subject of a distinct and separate action, thereby finally terminating this controversy.

For the foregoing reasons that part of the judgment appealed from restoring Boothe to possession of the land is affirmed; that portion ordering Erickson to account to Boothe is reversed, and the motion to vacate the judgment is denied.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur.