12 Cal. 403 | Cal. | 1859
delivered the opinion of the Court—Terry, C. J., and Field, J., concurring.
The judgment is affirmed.
On re-hearing in this case, the following opinion was rendered by Baldwin, J.—Terry, C. J., and Field, J., concurring:
On petition for a re-hearing.
The finding which is objected to is "that Laforge was not in possession. To prove that he was not, paroi evidence of the contents of a paper purporting to be an agreement of a cancellation of a lease was offered and admitted. It was objected that no consideration was shown for this agreement. But as a verdict, could not be found against Laforge, unless he was in possession, we do not see that this proof was inadmissible, for the agreement was evidence of a surrender of a former possession, whether there was a consideration for it or not. The finding was, therefore, right. At least, Laforge cannot complain. Judgment is for him. The reason given for the conclusion is not res judicata as to him, so as to bind him in any future proceeding. Though the Court decided he had no title and no possession, and therefore he was improperly joined as a defendant, yet it also decided that the plaintiff had no claim on him, and could recover nothing. We do not
Laforge’s right is just as good, therefore, now, as it was before the trial; the effect of the judgment being to determine the fact that he was not in actual possession; and, according to the case just cited, actual possession was necessary in order to sustain an action of ejectment against him.
We think, therefore, that conceding everything to the argument of the counsel—which seems to us to be more plausible than sound—there is no substantial error in the opinion which the petition reviews.
The petition is denied.