Raun v. Reynolds

18 Cal. 275 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

On appeal and cross appeal.

This cause has been several times before this Court. It comes now on appeal from the decree of the District Court confirming the report of referee to whom the accounts of L- Harris were referred; Harris having taken possession of the interests in the ditch, the subject of the mortgage in the bill mentioned, and ' received certain moneys arising from sales of water, etc.

It is not necessary to state all the facts. They will be found in 14 Cal. 667, and 15 Cal. 459.

1. The main question made by the plaintiff below on this appeal is, that the District Court (affirming the action in this respect of the referee) charged Harris with the sum of $8,150, collected by him in pursuance of the judgment of this Court, in the case of Harris v. Reynolds. This judgment was in a suit brought by Harris, as assignee of the mortgage and judgment of Raun, to recover the rents and profits from the defendant in the judgment accruing between the sale and the period allowed for redemption. The Court below gave judgment for the plaintiff in this suit for these profits, and this Court affirmed the judgment. At the time of this judgment below, the decree reversing the former judgment under which Harris claimed was not made, nor the sale, of course, set aside ; though at the time of the affirmance of this Court, the reversal had been made of this first decree. This matter of reversal of this first judgment was not brought into the case of Harris v. Reynolds as a plea or as a matter of defens^ ; nor, perhaps, could it have been. This Court passed upon the record of Harris v. Reynolds as that record stood when the District Court passed upon it. It affirmed the law upon the facts as they appeared on the record. The defendants had no opportunity of waging this matter in the District Court; they were guilty, therefore, of no laches in failing to set it up. We could take no notice of it in passing upon the record in the last case; for we could not go out of the particular case before us to find facts which might be supposed to influence our decision. Our judgment of affirmance had relation to, and took effect upon the judgment of the Court below. This Court merely declared, as a matter of law, that the District Court did not err in its decree upon the facts upon which it passed. But this Court did not decide upon the effect of the reversal, or upon the rights to which the defendants were entitled in consequence of that reversal. It does not follow because a party has a right, ui^ler a certain state of facts, to a judgment and the fruits of it, that he must necessarily be entitled to those fruits forever afterwards. A judgment, so long as it continues unreversed and unsuspended, may be enforced ; but when it is reversed, it is as if never rendered; and money collected by authority of it may, as a general rule, be recovered back.

In McClure v. Colclough, 5 Alabama, 65, it was contended that a party having prosecuted a writ of error at law to reverse a judgment, which w'as affirmed by the Supreme Court, could not file a bill to set it aside on independent grounds from those assigned in the record of appeal. The Court say: “ Our opinion is that the writ of error has no effect whatever as a bar, for -it may be that it was prosecuted for errors which have no connection with the present aspect of the case, and it would be exceedingly onerous to hold a party concluded from the pursuit of one remedy by seeking another for a matter entirely distinct. The statute doubtless places the matter on its.true foundation, when it requires a release of errors to be filed before an injunction shall be awarded; but there is nothing to prevent a party from testing any supposed error by taking his suit to an appellate Court, and afterwards, if the case warrants it, from seeking relief in equity.”

Here the equity of Reynolds arose after the reversal, to be restored to whatever he lost by the judgment; and this matter has not in any way been adjudicated against him. It is really a new cause of action; and we are not able to perceive upon what principle Reynolds is precluded from setting it up. Even upon newly discovered evidence, Chancery sometimes interposes to give relief against a judgment; bat here' was a new'fact denying effect to the facts first passed upon, and the judgment based upon them. If the fact of this reversal could have been interposed by way of plea or motion in the Supreme Court—which we do not concede—still it is not at all apparent that the failure to interpose it would have the effect of denying the defendant the benefit of this new cause of action for the purpose of regaining what he had lost by" the erroneous judgment.

2. We think there was no error in allowing for improvements made by the company upon the property. It was the duty of parties in possession and the right of the company to protect it, and the improvements seem to be reasonable and the expenditure judicious; nor do we think that the purchase of the Iowa ditch, under'the circumstances, stands on a different footing. There is no difference between buying this property and extending the work by making a similar improvement. This work and the improvements seem to have been made by the company and not by Harris exclusively.

3. Harris was not entitled to compensation for his personal services. It seems that at most-he can be considered only as a tenant in common, or one of several owners; and superintendents and agents were employed competent to the management of the property. Every other owner might make the same claim.

We think the referee has adjusted this claim upon the principles of equity, doing exact justice between the parties. And we affirm the decree in all its parts made in pursuance of his report.