RUZICH v. BORO ET AL (1943)

This appeal was taken upon the judgment roll alone and is from a judgment in favor of defendants and against plaintiff in an unlawful detainer action. The findings disclose that this case was consolidated for trial with an action brought by defendants herein against plaintiff wherein it was sought to compel specific performance of an agreement between the plaintiff and defendants herein under the terms of which the former agreed to sell to the latter the real property here in question. The findings further establish the fact that at the trial of the instant action it was stipulated that the decision herein should be rendered upon the same testimony adduced in the action for specific performance. By its findings in the case now under review the court determined that plaintiff herein did orally agree to sell the premises in question to the defendants; that the relation of landlord and tenant did not at any time exist between them, and that defendants were in possession of the premises by reason of the hereinbefore mentioned agreement to sell and which agreement was, in the consolidated action, ordered specifically enforced.

We have this day filed an opinion in the companion case above referred to, Boro v. Ruzich, 137 P.2d 51, wherein we affirmed the judgment of the trial court in that action decreeing specific performance of the contract of sale, and to which case reference is made for a statement of the facts involved in this litigation.

The question of title and right to possession was squarely involved in the case at bar. The parties made these issues by their pleadings and the court could not limit the scope of the inquiry nor refuse to find on questions so clearly in dispute. From what we have said in case No. 13949, supra, this day decided, we must presume on this appeal, taken on the judgment roll alone, that the findings herein that both title and right to possession were legally in defendants were supported by competent evidence, received without objection upon the part of plaintiff, and that the issues upon which such findings were predicated were properly before the court at the trial.

The judgment is affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.