W. B. FRANKLIN, Appellant, v. CHURCHILL COMPANY (a Corporation), Respondent, 187 Cal. 555

WILBUR, J. [1] This case is a companion case to Reynolds v. Churchill Co., ante, p. 543, [202 Pac. 865]. The record of the two cases is somewhat different, owing to the fact that in the trial court the attorney representing Franklin claimed throughout the proceedings that the supreme court had definitely determined in Churchill Co. v. Kingsbury, 178 Cal. 554, [174 Pac. 329], that the lands were sovereign lands and that, therefore, neither party had the right to purchase the same from the state of California.

His supplemental complaint based upon the judgment of the supreme court in the mandamus case of Churchill Co. v. Kingsbury, supra, was not permitted to be filed. By this supplemental complaint the plaintiff in effect contended that the judgment in the mandamus case was conclusive against the defendant and incidentally admitted that it was conclusive against himself. In the latter position he was in error.

Acting upon this belief the plaintiff declined to offer any evidence in the- case and contented Jn'-msp.lf with the record he had made by the motion for leave to file the supplemental complaint and by other motions and proceedings which need not be specifically pointed out. The judgment of the court being in favor of the Churchill Company, the plaintiff appeals to this court. While the more orderly process was that adopted in Reynolds v. Churchill Co., namely, to proceed with the trial of the case and offer in evidence the judgment in the mcmdamus case (Churchill Co. v.

Kingsbury, supra), it is clear that the appellant’s position was sufficiently made known to the court and that the court decided against his contention and that he had no intention of abandoning his claims to the land except upon the theory that the trial court was bound to hold the land to be sovereign land. In view of appellant’s contention in regard to the conclusiveness of the judgment in the mandamus case, the judgment of the trial court should be reversed and the case remanded for subsequent proceedings in accordance herewith.

If, upon a new trial, the plaintiff concedes, as he did on the former trial, that the land is sovereign land, the court should decree that he is not entitled to purchase the land, and upon presentation of the judgment in Churchill Co. v. Kingsbury must also decide against the defendant for the reason stated in Reynolds v. Churchill Co., supra. Judgment reversed. Sloane, J., Shaw, C. J., Lennon, J., and Shurtleff, J., concurred. Rehearing denied. All the Justices concurred.