WILLIAM J. DOUGLASS et al., Appellants, v. EDMOND BROOKS, Respondent, 38 Cal. 670

Crockett, J., delivered the opinion of the Court: This is an appeal from a judgment rendered for the defendant on a demurrer to the complaint.

It appears from the complaint that on the 28th of July, 1865, the defendant commenced an action in the Twelfth District Court against the present plaintiffs, to quiet his title to a lot in San Francisco, of which he was in possession; that the defendants therein appeared to the action and filed a demurrer and answer at the same time; that the cause was afterwards transferred for trial to the District Court for Alameda County; that in June, 1866, in the absence of the defendants therein, the cause was brought on for trial by the plaintiff before the Court, without a jury, and before the Court had disposed of the demurrer to the complaint; that on the trial a judgment was rendered for the plaintiff quieting his title, as' prayed for; that thereupon the defendants therein moved the Court, on affidavits, to set aside the judgment, which motion was denied; that thereupon the said defendants appealed to this Court from said order and the judgment; that on the hearing of the appeal the order and judgment were affirmed, on the ground that it did not appear from the record that the demurrer to the complaint was not disposed of before the trial; that the then defendants (present plaintiffs) “made a mistake in not positively stating, in said affidavits, that said demurrer to said complaint was not disposed of when the trial was so had on the 18th day of June, 1866, as they intended to do in said affidavits, and as the fact was that said demurrer was not so disposed of when said trial was so had therein, nor since.” The prayer is that the judgment be set aside, and for other relief.

The complaint contains much other matter which we deem it unnecessary to notice, inasmuch as the plaintiffs are concluded by the judgment referred to, unless it shall be set aside. The judgment has been finally affirmed on appeal to this Court (32 Cal. 208), and the complaint alleges it was affirmed because it did not appear from the record that the demurrer had not been disposed of at the time of the trial-.

The plaintiffs now seek to escape the bar of the judgment, affirmed on appeal, by the averment that in the affidavits used on the motion to vacate the judgment they “made a mistake in not positively stating in said affidavits,” as they intended to do, that the demurrer to the complaint had not been, disposed of at the time of the trial. No explanation is given of the mistake or of the causes which produced it. If final judgments of the highest Courts could be set aside on such grounds as these, there would be no end to litigation, and judicial proceedings would become a by-word and a mockery. Judgment affirmed.