108 P. 69 | Cal. | 1910
This is an appeal by James McNeil, intervener, from a judgment in favor of the plaintiff, Louise R. MeNeil, and from an order denying the motion of said intervener for a new trial.
Plaintiff, Louise R. McNeil, brought suit against Frank McLaughlin as administrator of the estate of James McNeil, deceased, seeking a judgment against the estate of said deceased quieting her asserted title to certain real property in the city of Santa Cruz. On the day after it was filed the defendant answered and pursuant to a stipulation of the parties the cause was transferred to the county of Santa Clara and to a department of the superior court in which the Hon. A.L. Rhodes presided. Both parties to the action also by stipulation in writing waived a trial by jury.
After the cause was set for trial in Santa Clara County Margaret McNeil and James McNeil, who alleged that they were respectively the surviving wife and son of the deceased filed their complaint in intervention. In the first cause of action pleaded it was alleged that the land in suit was community property of Margaret McNeil and the deceased; that after the death of James NcNeil the plaintiff took possession of the said property claiming to be the owner thereof and that she was still holding it adversely to the estate and the heirs of James McNeil, deceased. The second cause of action was based upon the theory that James McNeil, deceased, and Margaret McNeil had been tenants in common, each owning an undivided one-half interest in the land. The interveners prayed judgment that the plaintiff had no interest in the real property; that the respective interests of the various claimants be ascertained and that the said interveners should recover possession of the land. *376
The plaintiff and Frank McLaughlin, as administrator, answered denying all of the essential allegations of the complaint in intervention except that James McNeil was an heir of James McNeil, deceased. After the cause was at issue the interveners demanded a trial by jury upon all matters of fact involved but their request was denied by the court. Thereafter Margaret McNeil dismissed her complaint in intervention. This left James McNeil, appellant here, the only intervener.
At the trial it appeared that an appeal had been taken from the order appointing Frank McLaughlin administrator of the estate. The court, therefore, substituted F.E. Morgan, special administrator, as defendant in the action in the place and stead of said McLaughlin. The special administrator was permitted to file an answer to the complaint. None was filed by him, however, to the complaint in intervention. After the trial and this appeal the special administrator accounted and was discharged. F.G. Hoffman was appointed administrator of the estate of James McNeil, deceased, and the said Hoffman, as administrator, has been substituted as a party in the place and stead of the said Morgan, special administrator.
Appellant questions the sufficiency of the complaint on the ground that it does not in terms proclaim the adverse nature of the claim respecting which plaintiff seeks to have his title quieted. Section
Respondent seeks to justify the refusal of the lower court to accede to the intervener's demand for a jury upon two grounds, — 1. That he "is bound by the record of the case at the time of intervention" and was therefore subject to the terms of the stipulation of the original parties to the action in which a jury trial was expressly waived; 2. That an action to quiet title to land, instituted by a plaintiff in possession remains in equity and cannot be removed to the domain of law where trial by jury may be demanded as of right, by the mere averment of an intervener that he is the owner entitled to the possession of the property. It is true, generally speaking, that one who intervenes in an action is bound by the record of the action at the time of intervention. For example, it has been held that such a party is bound by depositions taken prior to his intervention (Rainbolt v.March,
"The purpose of the section is evidently to afford a remedy similar in character to that of the old bill of peace, but extending it to cases which the latter remedy did not reach. (See *378 Curtis v. Sutter,
Intervening in a case in which the possession of the property had been alleged by the original plaintiff who also asserted *379
exclusive ownership, James McNeil is in exactly the position of an original defendant out of possession who asserts title and the right of possession as against the person in actual possession. As such a defendant he would not have a right to a trial of the matters of fact by jury unless he had been recently dispossessed by the nominal plaintiff. In such a case he would be treated as really a plaintiff in possession entitled to demand a trial by jury of the issues of fact involved. (Donahue v. Meister,
"1. The character of this action has been heretofore stated. It was brought to determine an adverse claim to real property; the plaintiff being in possession, and the answer setting up a counterclaim in ejectment. Except as otherwise provided by statute, all the ordinary rules governing suits in equity to quiet title apply to this action, and it was triable by the court and not by a jury. (Roussain v. Patten,
The rule announced above has long been established in California and, we are convinced, it was properly applied in this case by the learned judge of the superior court who refused the intervener's demand for a jury.
Appellant objects to the substitution of the special for the general administrator. He insists that there was no warrant in law or in fact for such substitution. We cannot agree with this contention. The special administrator was appointed by an order duly signed by the judge of the court in which the probate proceeding was pending. In his petition for appointment as special administrator the defendant Morgan asked that he be given power, among other things, to "commence or maintain suits." The order recited that the court on reading his petition appointed him special administrator "with the powers of said estate enumerated," and directed that a minute order "to that effect" be entered "specifying the powers to be exercised by said special administrator." Objection was made to the introduction in evidence of this order upon the ground that it did not appear that a minute order had been entered in accordance with the court's direction. We do not think that the entry of such an order is "mandatory" as appellant contends, under the provisions of section 1412 of the Code of Civil Procedure. Estate ofSackett,
It follows that the judgment and order should be affirmed and it is so ordered.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied.
Beatty, C.J., dissented from the order denying a rehearing.