EDWARD F. SCHUBERT et al., Appellants, v. LUCILLE BATES et al., Respondents, 30 Cal. 2d 785

SHENK, J. This is an appeal from a judgment of the superior court in a certiorari proceeding which affirmed an order of restitution in an unlawful detainer action in the Municipal Court of the City of Los Angeles. The plaintiffs in that action (petitioners in the certiorari proceeding), purchased the property in question on October 8, 1943. Prior to that time Lucille Bates, the defendant in that action, has occupied the premises with her family on a month to month tenancy. The parties will be referred to by 'their designations in the unlawful detainer action.

On October 13, 1943, the plaintiffs procured from the Office of Price Administration a certificate authorizing them to evict the tenants at the expiration of three months from that date. The plaintiffs did not serve the defendant with a notice to surrender possession for almost a year. A notice to quit the premises on November 1, 1944, was served on September 28, 1944. The defendant did not vacate and the action in unlawful detainer was commenced on November 16, 1944. The defendant filed an answer which did not contain any request for affirmative relief.

On November 30, 1944, the respondent municipal court rendered judgment for the plaintiffs for recovery of possession, damages and costs. On the defendant’s application, execution on the judgment was stayed until December 27, 1944. No writ or other process was issued or served to enforce the judgment. On December 26, 1944, the defendant vacated the premises. The plaintiffs took possession on January 10, 1945. The defendant appealed from the judgment.

On October 11, 1945, the appellate department of the superior court reversed the judgment and remanded the cause for a new trial on the ground that service of the notice terminating the month to month tenancy was insufficient. On October 15, 1945, the plaintiffs moved in the municipal court to dismiss the action. On October 22d, they filed with the clerk of that court, pursuant to

section 581 of the Code of Civil Procedure, a request to dismiss and a dismissal was entered in the register of actions. On the same day the defendant, without first obtaining leave of court, filed a supplemental answer seeking affirmative relief. Concurrently she filed a motion to be restored to possession of the premises basing her request on the reversal of the judgment. On that date the hearing on the plaintiffs’ motion to dismiss was continued to, and the defendant’s motion for restoration of possession was set for hearing on, October 29, 1945.

On the latter date, after hearing, the court took both motions under advisement, and on November 19th, denied the plaintiffs’ motion to dismiss and granted the defendant’s motion to be restored to possession. On November 21, 1945, the plaintiffs moved to vacate the order of restitution and to reconsider the motion to dismiss. That motion was denied. On November 27, 1945, they filed in the superior court the present proceeding in certiorari. The petition alleged the foregoing facts and prayed that the order of November 19th, granting the motion for restitution be annulled.

It is that order and none other that is the subject of attack in the certiorari proceeding. When that order was made there was no showing, although it was subsequently sought to show, that the plaintiffs were not then in possession of the property. If there were bona fide purchasers in possession at that time whose rights were superior to those of the defendant their interests, it is assumed, would not be affected by the order under review. A preliminary question is whether certiorari was available to the plaintiffs.

It was not if the order of restoration was appealable, or was reviewable on appeal from a final judgment. The minute entry of November 19, 1945, shows that the denial of the plaintiffs’ motion to dismiss was based on the opinion of the court that the dismissal by request was effective (citing Richards v. Bradley, 129 Cal. 670 [62 P. 316]). The cited case indicates that after reversal of a judgment the parties are restored to their original rights, including the right of the plaintiff to dismiss the action pursuant to

section 581, subdivision 1, Code of Civil Procedure, if its exercise would not interfere with the right of the defendant to any appropriate affirmative relief; also that the right to dismiss pursuant to that

section may be exercised with the same effect either by request filed with the clerk or by motion addressed to the court. (See, also, McDonald v. California Timber Co., 2 Cal.App. 165, 166 [83 P. 172]; cf. Huntington Park Co. v. Superior Court, 17 Cal.App. 692 [121 P. 701].) The subsequent filing of a cross-complaint or answer requesting affirmative relief will not defeat the right (Hinkel v. Donohue, 90 Cal. 389 [27 P. 301]), nor will the right be impaired or lost by the refusal of the clerk to perform his duty (Kaufman v. Superior Court, 115 Cal. 152 [46 P. 904]).

The plaintiff proceeded by both methods, first by motion and then by request to the clerk before the motion was determined. The record indicates that the defendant’s supplemental answer and her motion for restoration were filed after the plaintiffs’ requested dismissal was entered. If that dismissal be deemed effective, we have a case where there is no final judgment and the order of restoration of possession may be said not to be appealable as an order made after final judgment. (Code Civ. Proc., subd. 7, § 983; Sharp v. Miller, 66 Cal. 98 [4 P. 1065]; Tripp v. Santa Rosa Street R.

Co., 69 Cal. 631, 633 [11 P. 219].) An order, following the reversal of a judgment and remanding for new trial, would be reviewable on appeal from a final judgment on retrial. (In re Kling, 48 Cal.App. 739 [192 P. 453], But compare Pico v. Cuyas, 48 Cal. 639; Bank of America v. McLaughlin, 37 Cal.App.2d 415 [99 P.2d 548]; First-Trust etc. Bank v.

Meredith, 19 Cal.App.2d 103, 105 [64 P.2d 977]; Hansen v. d’Artenay, 13 Cal.App.2d 293 [57 P.2d 202], where without discussion appeals from orders made after reversal of the judgment were entertained.) For purposes of disposing of the contentions on this appeal, however, we shall assume that the order of restoration was not appealable, that there will not be a further trial or a final judgment in the case, and that the present certiorari proceeding was therefore available to test the validity of the order,of restoration. (Code Civ. Proc., § 1068; Burlingame v.

Justice’s Court, 1 Cal.2d 71 [33 P.2d 669].) The superior court determined that the order of restoration was not in excess of the jurisdiction of the municipal court. The correctness of that determination is the subject of inquiry on this appeal. The power of the appellate courts to restore benefits lost pursuant to a judgment modified or reversed exists by virtue of sections 957 and 988f of the Code of Civil Procedure. But the power of a court whose order or judgment has been reversed to order restoration after reversal is inherent in that court. (Reynolds v.

Harris, 14 Cal. 667, 680-681 [76 Am.Dec. 459]; Polack v. Shafer, 46 Cal. 270, 276; Hewitt v. Dean, 91 Cal. 617, 620 [28 P. 93, 27 Am.St.Rep. 227]; Heydenfeldt v. Superior Court, 117 Cal. 348 [49 P. 210]; Kenney v. Parks, 120 Cal. 22, 24 [52 P. 40] ; Levy v. Drew, 4 Cal.2d 456, 459 [50 P.2d 435, 101 A.L.R. 1144]; Oldfield v. Bank of America etc. Assn., 6 Cal.2d 103, 107, 112 [56 P.2d 1235] ; Hansen v. d’Artenay, supra, 13 Cal.App.2d 293, 297; Bank of America v.

McLaughlin, supra, 37 Cal.App.2d 415, 417; see, also, cases collected in Seavey and Scott’s Notes to Restatement of the Law of Restitution, p. 84.) Thus, that power of the court and the right of the party prevailing on the appeal to have it exercised exist independently of the request for its exercise. Therefore, the plaintiffs’ requested dismissal, if otherwise proper pursuant to

section 581, subdivision 1, Code of Civil Procedure, would not deprive the municipal court of jurisdiction to grant the appropriate relief to which the defendant is entitled after reversal of its judgment in the unlawful detainer action. In other words, while the plaintiff has the right to dismiss the action before trial, where no counterclaim or request for affirmative relief has been filed, that right, after a trial and reversal of the judgment, is subject to the right of the defendant to restoration of benefits lost by virtue of the erroneous judgment.

The court has inherent power to enforce that right, unaffected by the right of the plaintiff to dismiss the action. The existence of the power to restore benefits after reversal flows from the rule that upon reversal the action is as though it had never been tried, and the court will, where justice requires it, place the parties as nearly as may be in the condition in which they stood previously. (Cowdery v. London etc.

Bank, 139 Cal. 298, 304-305 [73 P. 196, 96 Am.St.Rep. 115].) While the rule again opens up the plaintiffs’ opportunity to dismiss, it is likewise applicable to prevent the dismissal from depriving the defendant of any relief to which she may be entitled by virtue of the reversal. Its application has so been limited to guard a defendant’s right to statutory costs. (Hopkins v. Superior Court, 136 Cal. 552 [69 P. 299] ; Matson v. Fortuna High School Dist., 54 Cal.App. 586 [202 P. 167] ; Spinks v.

Superior Court, 26 Cal.App. 793 [148 P. 798].) A similar result should obtain in the present case, wherein a dismissal by the plaintiff may not be deemed to divest the court of jurisdiction to enforce upon reversal the defendant’s right to restoration of benefits lost pursuant to the erroneous judgment. That the municipal court correctly viewed the continuance of its jurisdiction for the purpose of considering the defendant’s right to restoration is indicated by the denial of the plaintiffs’ motion to reconsider the order denying their motion to dismiss.

The plaintiffs contend, however, that the jurisdiction of the municipal court in that respect could be invoked and exercised only where the defendant had lost possession through compulsion, as by forcible eviction under execution process; that the vacation of the premises by the defendant was a voluntary surrender of the premises; that the order for restoration was therefore an exercise of power in excess of jurisdiction.

The plaintiffs thereby seek a declaration that forcible eviction pursuant to execution process constitutes a jurisdictional fact which must exist before the power attaches to make the order of restoration. The absence of the claimed jurisdictional fact is conceded. The question is whether, as a basis for the exercise of jurisdiction to determine the merits of the defendant's motion for restoration, there must have been a forcible ouster pursuant to execution process. The exercise of power to restore benefits after reversal has been declared to be discretionary. (Spring Valley W. W. v.

Drinkhouse, 95 Cal. 220 [30 P. 218] ; Yndart v. Den, 125 Cal. 85 [57 P. 761]; Hansen v. d’Artenay, supra, 13 Cal. App.2d 293, 297; Bank of America v. McLaughlin, supra, 37 Cal.App.2d 415, 418.) The discretionary element is inconsistent with an assertion that the relinquishment of possession pursuant to a judgment declaring the parties’ rights must in addition have been by forcible means before the court has power to place the parties where they were before the rendition of the erroneous judgment. In Bank of America v.

McLaughlin, supra (37 Cal.App.2d 415, at 417), it was indicated that “a party is ordinarily entitled to restitution after a reversal of a judgment if he has been deprived of property by virtue of said judgment or by virtue of process issued upon said judgment.” The rule is stated as follows in Restatement of the Law of Restitution,

section 74: “A person who has conferred a benefit upon another in compliance with a judgment, or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable or the parties contract that payment is to be final; if the judgment is modified, there is a right to restitution of the excess.” Under comment b., the rule is stated to be applicable although no execution was issued and although a stay of execution was obtainable; the statement being added that coercion exists only in the sense that performance was a legal duty at the time.

Cases in support of the rule and the statement of its application are collected in Seavey and Scott’s Notes to Restatement of the Law of Restitution at page 86. In this state, in Ashton v. Heydenfeldt, 124 Cal. 14, 17 [56 P. 624], it was recognized that delivery of personal property by executors pursuant to a decree of distribution was not a voluntary or gratuitous act which would preclude their right to restitution when the decree was reversed. In Ward v.

Sherman, 155 Cal. 287, 291 [100 P. 864], the rule was also recognized and, though the balancing of accounts showed nothing due, must be deemed to have been applied where possession of real and personal property had been relinquished pursuant to a judgment subsequently reversed, without any showing that the relinquishment was pursuant to execution process. In Fritz v.

Mills, 170 Cal. 449, 455 [150 P. 375], the court expressed the opinion that the plaintiff’s payment pursuant to judgment, without more, was not voluntary and that it would be inequitable for the defendant after reversal on appeal to profit by the payment which the plaintiff was, otherwise than by the judgment, under no obligation to make. In similar vein are the cases of Warner Bros. Co. v. Freud, 131 Cal. 639 [63 P. 1017, 82 Am.St.Rep. 400] ; Mortgage Securities Co. v. Pfaffman, 47 Cal.App. 383 [190 P. 641] ; and Erickson v.

Boothe, 79 Cal.App.2d 266 [179 P.2d 611], holding that payment of money pursuant to decree, or surrender of possession of property pursuant to an adjudication of unlawful possession, although no execution issued, are not voluntary acts depriving the parties of rights relative to appeal or for restoration upon reversal of the judgment. The fact that in some eases benefits had been lost under the erroneous judgment pursuant to execution process, does not render futile the exercise of the power in cases where the only coercion was that of a judgment declaring the parties’ rights and duties.

The plaintiffs place reliance "upon the case of Black v. Knight, 176 Cal. 722 [169 P. 382, L.R.A. 1918C 319], which involved an action for damages for alleged unlawful eviction. The asserted unlawful eviction was the vacation of the premises by the tenant pursuant to a judgment in unlawful detainer before the issuance of a writ of execution. That judgment subsequently was reversed whereupon the landlord tendered repossession of the premises to the tenant, but the tender was refused and the action was thereupon dismissed.

The tenant did not seek restoration to possession, nor any benefits lost by the erroneous judgment. The case indicates the showing necessary in an action for damages for unlawful eviction and is not controlling in the present certiorari proceeding, the sole purpose of which is to test the power of the municipal court to act in the premises. We conclude that there was no requirement in law that the dispossession of the defendant be forcible or pursuant to execution process, before the court could exercise its inherent power to restore possession lost pursuant to a judgment reversed on appeal.

It is sufficient that possession was relinguished pursuant to the judgment declaring the rights of the parties. It is not contended that the respondent court failed to afford due process to the plaintiffs on the hearing of the motion for restoration. The record shows that that court considered the merits of the motion—a subject not proper for consideration here; that its action was within its discretionary power; and that the order may not be annulled in a certiorari proceeding. (Halpern v. Superior Court, 190 Cal. 384, 387 [212 P. 916]; Kupfer v.

Brawner, 19 Cal.2d 562, 565 [122 P.2d 268].) There was therefore no error on the part of the superior court in affirming the order. The judgment is affirmed. Gibson, C. J., Edmonds, J., Carter, J., Traynor, J., and Spence, J., concurred.