Donner v. Palmer

45 Cal. 180 | Cal. | 1872

Dissenting Opinion

Rhodes, J., dissenting:

The judgment of the Court below is, in my opinion, erroneous, because th£ intervenor is not entitled to a judgment against the plaintiff for the recovery of the possession of the premises either on the pleadings or on the stipulation. The judgment of this Court on the former appeal reversing the order denying the intervenor’s motion for a new trial may he construed, without doing violence to its language, as ordering judgment that the intervenor recover the possession -of the premises from the defendants, the only parties, so far as the record showed, who held such possession.

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Lead Opinion

By the Court:

1. Upon looking into the judgment of the Court below of May 31st, 1871, rendered there upon the return of the cause, we are of opinion that that judgment was rendered in conformity with the mandate of this Court, as contained in the remittitur of July 29th, 1870.

2. There can be no doubt that the judgment rendered, here on July 29th, 1870, was a definitive determination of the rights of the parties in the ease.

The parties—the plaintiff, the defendants, and the intervenor—were before this Court upon the appeal taken by the latter from the judgment of December 20th, 1865, and from the order denying the motion of the intervenor for a new trial.

The affirmance of that judgment, upon the other appeal taken by the defendants, did not operate to oust the authority of this Court to reverse it upon the appeal taken by the intervenor from the order denying his motion for a new trial. It frequently occurs in practice that a judgment affirmed upon the judgment roll is subsequently reversed through the instrumentality of an appeal taken from an order determining a motion for a new trial, for the proceedings are recognized as being entirely independent of each other.

Judgment affirmed.