Erickson v. Boothe

• Decision Date: 30 September 1954
• Parties: Mazie ERICKSON, formerly Mazie Tangeman, now Mazie Woolsten-Hulme, Executrix of the Last Will and Testament of Timothy Carlon, deceased, and Mazie Erickson, an individual, Plaintiff and Appellant, v. Clyde D. BOOTHE, Defendant and Respondent. Civ. 8374. . LEYDI
• Court: California Court of Appeals Court of Appeals

Page 460

274 P.2d 460

127 Cal.App.2d 644

Mazie ERICKSON, formerly Mazie Tangeman, now Mazie Woolsten-Hulme, Executrix of the Last Will and Testament of Timothy Carlon, deceased, and Mazie Erickson, an individual, Plaintiff and Appellant, v. Clyde D. BOOTHE, Defendant and Respondent.

Civ. 8374.

District Court of Appeal, Third District, California.

LEYDI

Sept. 30, 1954.

Lafayette J. Smallpage & Harold J. Willis, Stockton, and Preston, Braucht & George, Merced, for appellant.

Taylor, Taylor & Taylor, Modesto, for respondent.

PEEK, Justice.

This case is before this court for the fifth time--in this instance by virtue of plaintiff's appeal from a judgment in favor of defendant awarding him certain amounts representing the sums due him for the period he was dispossessed by plaintiff of the ranch involved in the litigation.

Originally plaintiff by an action for declaratory relief sought to determine whether defendant as lessee had effectively exercised an option to 're-lease' the property under the terms of a lease contract. A judgment in favor of plaintiff, as executrix, was reversed on appeal. Erickson v. Boothe, 79 Cal.App.2d 266, 179 P.2d 611. As executrix she thereupon filed a dismissal of that action, and Boothe who also had sought declaratory relief moved the trial court for judgment in accordance with the decision on appeal. The dismissal was set aside and, after a hearing on Boothe's motion, judgment was entered on October 3, 1947, declaring defendant had effectively exercised the option and that he was entitled to be restored to possession of the property. The court further ordered that he was additionally entitled to an accounting from plaintiff, as executrix, for her use of the premises during the period he was dispossessed. Plaintiff's appeal from this judgment was summarily dismissed by the Supreme Court on the ground that it was merely interlocutory and therefore was not appealable. Erickson v. Boothe, 35 Cal.2d 108, 216 P.2d 454. Subsequent to the first action, plaintiff procured distriction of the estate to herself as sole legatee. Boothe then moved the trial court to compel plaintiff, individually and as sole distributee of the estate, to continue the action and be bound as an individual by the aforementioned judgment of the trial court. The trial court granted the motion for substitution, which order was affirmed on appeal. Erickson v. Boothe, 90 Cal.App.2d 457, 203 P.2d 122.

On June 15, 1950, on motion of defendant, the trial court ordered plaintiff to show cause why an order should not be made directing her to account and pay to defendant certain specified sums, together with interest, for the value of her use and occupation of the premises. Plaintiff's motions to vacate that order of substitution and for leave to file a supplemental complaint were denied. Following a hearing on the accounting, the cause was submitted, and judgment was entered in favor of defendant. It is from that judgment that the within appeal has been taken, and from the order of November 1, 1948, substituting Mazie Erickson, individually, for Mazie Erickson, as executrix.

Appellant first contends that if there is any liability on her part to respondent, a portion thereof must be cast upon the Estate of Carlon of which she was the sole distributee. This amounts to nothing more than an attack on the validity of the order of substitution, affirmed on appeal, 90 Cal.App.2d 457, 203 P.2d 122, and by virtue of which she is bound as an individual by the judgment of October 3, 1947. Accordingly, the propriety of said order is not now open to question, and the issue of appellant's individual liability is res judicata. Gore v Bingaman, 20 Cal.2d 118, 121, 124 P.2d 17; Cafe Apollo Co. v. Anselm, 70 Cal.App.2d 654, 161 P.2d 473.

Appellant next contends that it was error for the trial court to deny her motion for leave to file a supplemental complaint to recover, and offset against the rents, issues and profits, damages for alleged waste committed by the respondent during his period of occupancy of the premises.

The office of a supplemental complaint is to bring to the notice of the court and opposing party 'facts material to the cases occurring after the former complaint * * *', Code of Civil Procedure, section 464, which would affect the rights asserted and the judgment to be rendered. Also it must be in furtherance of, and consistent with, the original action. Stephani v. Abbott, 137 Cal.App. 510, 516, 30 P.2d 1033. 'Such a right,' the court said in the early case of Gleason v. Gleason, 54 Cal. 135, 'can be exercised only with reference to matter which may be consistent with, and in aid of the case made by the original complaint, and which occurred between the time of filing the original complaint and the trial or judgment in the action.' The motion to file such pleadings is addressed to the sound legal discretion of the trial court, and its ruling thereon will not be disturbed on appeal in the absence of a showing of a manifest abuse of that discretion. Ross v. McDougal, 31 Cal.App.2d 114, 87 P.2d 709.

Here the original complaint sought declaratory relief concerning possession of the premises in question. It was not filed until after defendant was out of possession. Obviously then any commission of waste by him would of necessity have been during his possession. Hence, the supplemental complaint could not have related to material facts 'occurring after the former complaint', Code of Civil Procedure, section 464, or to facts occurring 'between the time of filing the original complaint and the trial or judgment.' Gleason v. Gleason, supra.

The principle is well settled that after reversal of a judgment under which a party obtained possession he is in the position of a trustee of the property and the one so dispossessed is '* * * entitled to restitution of all the things lost by reason of the judgment in the lower court * * * where justice requires it'. Ward v. Sherman, 155 Cal. 287, 291, 100 P. 864, 865.

Applying the rule above enunciated to the facts in the present case it appears first that plaintiff's possession which continued until 1949 was not tortious; second, that she held the same as trustee for Boothe; and, third, that as trustee she was obligated to...