ROSENBERG v. BULLARD (1934)

Plaintiff owned an apartment house in Los Angeles. Defendant owned twenty-five acres of orchard land in Tulare county and sixteen unimproved lots in Lindsay in said county. An exchange of properties was effected between these parties through agents. Plaintiff claims that she was defrauded in the value of the property received by her to her damage.

This suit was begun in 1929, an attachment having been had on certain real property, the defendant being out of the state. Upon the trial the defendant defaulted, and plaintiff took default judgment for $65,350. This judgment by default was set aside and defendant permitted to answer. The order setting aside the default also dissolved the attachment. The plaintiff filed her notice of appeal from the two orders, that is, the one vacating the default and the one dissolving the judgment. Thereafter, and while this appeal was then pending, the defendant filed her motion supported by affidavits making demand that the case be set down for trial, stating, among other things, that she would suffer irreparable injury if it were not disposed of since her title was clouded, etc. The case was then set down and tried, and plaintiff had judgment for $14,300. From this judgment she has appealed, and it is this last appeal now before the court. In the meantime the first appeal mentioned has been decided, and the judgment affirmed. In that appeal it was decided that, the attachment being properly dissolved, the judgment of default should have been set aside, and was properly vacated. The validity of the attachment was the real point at issue therein.

The real ground of appeal is the question as to a representation made that the property was worth $30,000, although some other points are presented.

The first point made in the briefs is that the appeal above mentioned operated as a stay to prevent the superior court from trying the case. It is peculiar that the trial was caused by the defendant herself, who now takes this appeal and makes this point; she, having insisted that the case be set for trial or she would be greatly damaged, now insists with equal vehemence that it should not and could not have taken place.

It is true the general rule is that an appeal stays every action in the lower court unless it be some incidental or collateral matters not affecting the vital questions in the case. In the case of Rosenberg v. Bullard, 127 Cal. App. 315, 15 P.(2d) 870, where the appeal is claimed to operate as a stay, it is readily seen that the appeal was upon the question of the validity of the attachment, and, it having been found invalid, the motion to set aside and vacate the judgment was properly made. Counsel for defendant insists, however, that, whatever may be said as to her having the case set for trial, no party may waive objection to jurisdiction nor confer it by consent, waiver, or estoppel. There are authorities to this effect; but there was no stay in this case because the appeal was not upon the merits of the case, and further it is now a moot question, the former appeal having been finally decided as is shown by the above. Rosenberg v. Bullard, supra. All objections that might have existed are now without merit, and there is nothing here presented to cause a reversal of the judgment.

The question as to whether the representations of value were merely matter of opinion or of material fact presents a matter of conflict of evidence. The jury, after a hearing, found for plaintiff, and specifically decided, by special interrogation, that the representations were of a fact. We do not feel justified in reversing that finding. Although plaintiff inspected the property, she testified that she did so very inadequately and because it was late and she was not informed as to values; that she placed herself in the hands of the agents of the adverse party who were informed as to the property and conditions present, and relied upon them.

It is claimed that the court erred in not granting a new trial on the ground of newly discovered evidence. The record discloses that there were some account books at Tulare some 140 miles from the place of trial, from which a witness might have secured dates to prove he was not present at a certain place as was testified to by plaintiff. No application was made for a continuance. All the facts stated were known, or could have been known, to witness. He knew the case was coming up, and could with reasonable diligence have discovered this evidence and produced it at the trial or had an application for time to get it. It existed, and its existence, and not its materiality, must be the subject of discovery. A claim such as this is not favored. 20 Cal. Jur. 80; Spiegelman v. Eastman, 95 Cal. App. 205, 272 P. 761; Easom v. Gen. Mortg. Co., 101 Cal. App. 186, 281 P. 514; Fuller v. Harwell, 117 Cal. App. 280, 3 P.(2d) 592; Snodgrass v. Snodgrass, 81 Cal. App. 360, 253 P. 755; section 657, Code Civ. Proc.

The point is further made that the court erred in not admitting the evidence of witness Bullard as to values. The court held he was not qualified to testify. No abuse of discretion is shown.

The instructions given and refused have been considered, and we think the jury was correctly and sufficiently instructed and no error as to instructions can be found.

The judgment should be, and is hereby, affirmed.

GANS, Justice pro tem, delivered the opinion of the court.

We concur: PULLEN, P. J.; PLUMMER, J.