WEISZ v. McKEE (1939)

In view of the persistence of appellants and the sincerity of their counsel in his belief that both the judgment of the trial court and the decision of this court were erroneous, we will say by way of explanation in denying appellants' motion for rehearing that had these particular defendants, respondents herein, moved for judgment on the pleadings under the limited prayer for relief set forth in the answer, the authorities cited by appellants would have been applicable. Kershaw v. Hogan, 127 Cal.App. 89, 15 P.2d 535; Islais & Salinas Water Co. v. Allen, 132 Cal. 432, 64 P. 713. But appellants injected, in connection with respondents' motion, their motion for judgment on the pleadings. Both were heard and determined at the same time and one judgment was entered thereon. The court rendered a judgment adjudicating the rights of the parties in accordance with the allegations of the complaint wherein appellants allege that respondents were the owners of certain definite interests in and to the property and that they claimed some right, title and interest in the described property other than as alleged in the complaint, and that said defendants should set forth those interests in and to the property so that the respective interests may be determined and adjudicated. In the answer respondents set forth their specific interests as definitely alleged in the complaint and frankly admitted in the answer that they claimed no other or greater right, title or interest in and to the property than that as alleged in the complaint and likewise admitted that they claimed no interest in any royalty adverse to the alleged interest of plaintiffs. Based on the pleadings, the court has made a determination of their respective rights in the real property but has reserved for subsequent decision the rights of appellants to an undivided 12 per cent interest in the remaining property, i.e., property alleged to be claimed by the remaining defendants. It would appear that the rights of appellants as against these respondents have not been affected by the judgment entered under the pleadings. If appellants can show no interest in the property of respondents they cannot be aggrieved by a judgment declaring someone else to be the owner. Rockey v. Vieux, 179 Cal. 681, 683, 178 P. 712.

Petition for rehearing denied.

PER CURIAM.