Opinion
Civ. No. 374.
February 22, 1908.
APPEAL from a judgment of the Superior Court of Napa County. H. C. Gesford, Judge.
The facts are stated in the opinion of the court.
Louise Matthai, Rose Matthai, and Warner Temple, for Appellants.
Theodore A. Bell, and Bell, York Bell, for Respondent.
Action in ejectment. The appeal is from the judgment and is brought up on the judgment-roll alone.
The complaint is in the usual form in actions for the recovery of possession of real property. It alleges that the plaintiff for many years prior to the commencement of the action had been, and "he now is, the owner and entitled to the exclusive possession" of the premises in dispute, and that the "defendants have been and now are in possession of said premises," and "have wrongfully and unlawfully withheld, and do now wrongfully and unlawfully withhold, the possession of said premises, and the whole thereof, from plaintiff."
A general demurrer to the complaint was overruled by the court, and properly so. The essential allegations necessary to an action in ejectment in form are the estate of plaintiff, possession by defendants at the commencement of the action and their wrongful withholding the same. ( Haggin v. Kelly, 136 Cal. 483, [ 69 P. 140]; Hihn Co. v. Fleckner, 106 Cal. 97, [39 P. 214]; Hihn v. Mangenberg, 89 Cal. 268, [26 P. 968]; Rego v. Van Pelt, 65 Cal. 254, [3 P. 867]; Payne v. Treadwell, 16 Cal. 246.)
No error was made by the court in its order sustaining the demurrer to the alleged cross-complaint. The land concerning which complaint is made by defendants in their so-called "cross-complaint" is not the land referred to in plaintiff's complaint. The affirmative matters set out by defendants in no sense constituted a cross-complaint. (See Mills v. Fletcher, 100 Cal. 142, [34 P. 637]; Nelson v. O'Brien, 139 Cal. 628, [ 73 P. 469]; Phillips v. Hagart, 113 Cal. 554, [54 Am. St. Rep. 369, 45 P. 843]; Bulwer etc. Mining Co. v. Standard etc. Mining Co., 83 Cal. 589, [23 P. 1102].) The affirmative relief sought by the purported cross-complaint does not relate to or depend upon "the contract or transaction upon which the action is brought," or does not affect "the property to which the action relates." (Code Civ. Proc., sec. 442.)
The statement in the brief of appellants to the effect that the judgment was procured through false testimony cannot be considered here. There is no bill of exceptions, the appeal being from the judgment on the judgment-roll alone. The presumption is that the evidence is sufficient to support the findings upon which the judgment rests. Besides, the question as to whether testimony is false or not is one which must ordinarily be left exclusively to the determination of the trial court, and when so determined is usually conclusive on appeal.
The judgment is affirmed.
Burnett, J., and Chipman, P. J., concurred.