113 P. 876 | Cal. Ct. App. | 1910
From the judgment in favor of defendant, the plaintiff appeals on the judgment-roll.
The action was for unlawful detainer, for damages and for the appointment of a receiver. It was tried before a jury, who rendered a general and a special verdict. By its findings and conclusions of law, the court decided all the issues in harmony with said verdicts of the jury, and judgment was entered accordingly. A receiver was appointed in the action on the twenty-fourth day of August, 1909, and this order was set aside and vacated on the twenty-sixth day of October, 1909, the date when the judgment herein was rendered.
The contentions of appellant are: "First. That the decision of the court in discharging the receiver was erroneously made and the same is against law. Second. That in the decision of the case, the trial court withdrew the issues of fact or case from the jury, whose province alone it was to decide. Third. The special verdict of the jury in the case does not meet the requirements of the law. Fourth. The trial court should have sustained the demurrer to the answer upon the grounds stated."
As to the first objection, it is to be observed that the order does not in terms discharge the receiver, although it may be conceded to have that effect, since it vacates and sets aside the order appointing him. The action of the court cannot be disturbed for the simple reason that error is not shown. It was probably not necessary for the court to make this formal order, but appellant has shown no ground for complaint. The presumptions are, of course, in favor of the regularity of the proceedings, and we must assume that the court was entirely justified in making the order. (Kahn v. Mattai,
Appellant is also at fault in the following contention: "The order appointing the receiver could have been vacated only on appeal and could not be reviewed by this court on appeal from the judgment. The portion of the judgment purporting to vacate the order appointing the receiver is by its terms in the nature of a collateral attack by the court on its own order." It is true that an order appointing a receiver is itself an appealable order, but if it appears upon the face of the record to have been made without any authority by the court, it may be vacated and set aside by the same court at any time. This is settled beyond any controversy. The rule is stated inFreiss v. Hotaling,
It cannot be said that the court withdrew the case from the jury. The fact is that the jury found on all the issues made by the pleadings. What was not covered by the special *54
verdict was included in the general verdict for defendant. The court's findings and conclusions of law were also in accordance with said verdicts. It was not really necessary for the court to make any findings, since the verdicts of the jury could be considered conclusive of the whole case. (Johnson v. Mina RicaGold Min. Co.,
The objection as to the special verdict is that "it is incomplete and defective. To several of the questions which embraced special issues no answer or special finding was made by the jury, nor did they specially find upon other material issues essential to the decision of the case." Certain alternative questions were not answered and properly so. No answer was given to the last special interrogatory, which was as follows: "Has the plaintiff violated the terms and conditions of the lease, and if so, by what act or acts?" Otherwise, the findings were complete. The said unanswered interrogatory was proposed in view of a counterclaim set up *55 by defendant in his answer by virtue of which he asked for damages for the unwarranted interference by plaintiff with defendant's enjoyment of the premises. But it is perfectly clear that no harm has been done appellant by the jury's failure to answer the question, for the reason that upon this issue the finding and judgment of the court were in favor of plaintiff. Thus he was given the advantage that would follow from a negative answer to the question. He could neither expect nor obtain anything more. Besides, neither an affirmative nor a negative answer to the question could be deemed important in view of the negative answer of the jury to a former question, No. 4: "Has the defendant been damaged by any act or acts of the plaintiff as set out in defendant's answer and counterclaim?"
It does not appear whether the special issues were submitted to the jury in response to the request of either party or the agreement of both, or otherwise. Neither does it appear that any objection was made to the court's action in the matter. But these considerations may be ignored, since the course pursued by the court is directly authorized by section
There is nothing in the cases cited by appellant which lends support to his claims. In McDermott v. Higby,
Lastly, it is claimed that the "portion of the answer to which the demurrer is directed does not state a cause of action or a counterclaim as defined in the law, nor is either of the items of damage sought to be recovered proximate or flow from the acts complained of." Here again the question is merely of academic interest. The jury found that defendant was not damaged by the acts complained of, and the court adopted this view and awarded defendant nothing upon his *57 so-called counterclaim. Hence, it is clear that the error, if any, was entirely without prejudice.
We feel satisfied that there is no ground whatever for interfering with the judgment of the court below, and it is therefore affirmed.
Hart, J., and Chipman, P. J., concurred.