87 P. 1104 | Cal. Ct. App. | 1906
It is alleged in the complaint herein that on a specified date the plaintiff was the owner, seised in fee and in the possession of a designated tract of land, and at the time the action was commenced he was the owner and entitled to the possession of said land. This is followed by an averment that on the date mentioned the defendant entered upon and ousted and ejected plaintiff, to his damage in the sum of $1,000. The prayer demands restitution of the premises with damages in the sum stated. The defendant filed an answer denying each of the allegations of the complaint and pleading a judgment rendered in an action between plaintiff and defendant's predecessor in interest, involving the title and possession of the land here in controversy, which judgment was affirmed by the supreme court (see De Molera v. Martin,
The plaintiff demurred to the cross-complaint on the ground that it did not state facts constituting a cause of action. The demurrer was overruled and plaintiff answered, but later withdrew his answer and elected to stand on the demurrer to the cross-complaint. His default was thereupon entered and the court proceeded to hear evidence touching the averments of the cross-complaint, all of which were found to be true as pleaded. Judgment was thereupon entered in favor of defendant, and from such judgment this appeal is prosecuted.
Appellant contends that the court erred in overruling his demurrer to the cross-complaint, and this contention presents the only point urged in the brief filed in his behalf.
It is urged that in cases like the one at bar a cross-complaint is always unnecessary and improper, andDoyle v. Franklin,
Under section 442, Code of Civil Procedure, whenever the defendant seeks affirmative relief affecting the property to which the action relates, he may in addition to his answer, file a cross-complaint. That the affirmative relief demanded by the defendant related to the property to which this action relates, cannot be gainsaid. That such relief involved more than title and right of possession seems equally clear. The plaintiff was bound by the former decree if the property in controversy here formed part of the land embraced in the prior litigation. The defendant was entitled to relief against harassing, annoying and vexatious attempts to relitigate questions already adjudicated and settled, and if so, we can conceive of no better time or place to seek such relief than in an action practically identical with the case already determined *302 against the plaintiff's assertion of right. It is not necessary to consider the propriety of thus litigating some questions arising out of facts stated in the amended cross-complaint. The single question presented for determination here is whether the cross-complaint states facts sufficient to entitle the defendant to any affirmative relief. Having concluded that it does, the judgment must be affirmed, and it is so ordered.
Buckles, J., and Chipman, P. J., concurred.