The opinion
Crockett, J., delivered the following opinion of the Court, upon a re-hearing:
On a re-hearing which was granted in this cause, by consent of counsel, it was ably and elaborately argued by the respective counsel, both orally and in printed briefs; but after a careful consideration of the arguments, and a re-examination of the important and interesting questions involved in the case, we see no reason to change or modify the views expressed in the last opinion of the Court.
*319 It is urged with much earnestness by counsel for the appellant, that we should order a final judgment for the plaintiff to be entered on the findings, and that the case should not be remanded for a new trial. The argument is, that there is no dispute about the facts, all of which are set forth in the findings, and that the only error of the District Court was in its conclusions of law from the facts found. Hence, it is said, there is no need for a new trial, which would only entail upon the parties a useless and vexatious expense and delay, without accomplishing any useful result. On the other hand, the counsel for the defendants insists that the only trial had in the Court below was on the equity side of the Court, and was confined to the issues raised by the equitable defenses set up in the answer, and that, if these be all finally decided against the defendants, they are, nevertheless, entitled to a trial of the issues raised in the action at law.
The action was tried before the Court, without a jury, and the more regular and orderly practice in such cases clearly is, first, to dispose of the equitable defenses set up in the answer. If these are found for the defendant, it will obviate, in most cases, the necessity of trying the law side of the action. But, if "found against the defendant, he still has the right to be heard on his other defenses. When a jury is waived, and the whole case is tried before the Court, it is often difficult to ascertain from the record whether the trial was confined to the equitable defenses alone, or included all the issues in the cause. A loose practice has prevailed in this respect, which ought to be corrected, and which sometimes leads to the most perplexing difficulties. It should distinctly appear from the record that the equitable defenses were first tried and disposed of; or, if the whole action, and all the issues were tried and submitted together, that fact should appear, so that when the case comes into this Court, we shall not be left in doubt whether the whole action, or only the equity branch of it, was tried and decided in the Court below. This loose practice appears to have prevailed in this case. The complaint avers that the plaintiff is the owner, and entitled to the possession of the premises in *320 contest, and that the defendants wrongfully withhold the possession. The answer, first, denies the title of the plaintiff, and his right to the possession; second, avers generally that the defendants are the owners in fee, and entitled to the possession; and, third, sets up certain equitable defenses, and prays “that before the trial of this action this Court would determine and declare that the plaintiff, Joseph Martin, is estopped from setting up in this action any title to said property derived from the Eureka Lake Company, subsequent to the date of the organization of the Eureka Lake Water Company, and the possession by it of said property; and that said plaintiff be enjoined and restrained from setting up such title in this action, ” and for general relief.
In the natural order of business, it was the duty of the Court, first, to try and decide upon this equitable defense, before proceeding with the action at law. If it sustained the defendants’ equities, as it did, it would only enjoin the plaintiff from setting up title under the Eureka Lake Company, acquired after the date specified in the answer; leaving untouched any other title the plaintiff might be able to show. This is all the Court attempted to do in its judgment, which was “that said plaintiff, Joseph Martin, be forever estopped, enjoined and restrained from asserting or setting up, as against the defendants, Zellerbach and Powers, and title to the premises described in the complaint, derived from the Eureka Lake Company subsequent to the possession of said premises by the Eureka Lake Water Company; i. e. subsequent to the 29th day of October, 1860, and that he be enjoined and restrained from setting up said title in this action,” and that defendants recover their costs. The judgment is silent , as to any other title the plaintiff may have. It does not attempt to adjudge that the plaintiff has no valid title, or is not entitled to the possession, but only enjoins him from asserting a particular title. There was nothing in the judgment to hinder the plaintiff from proceeding at once with a trial of the action at law, and relying on any other title he might have, except that which he was enjoined from asserting. In order to ascertain what was tried and decided, we can look only to the judgment; for nothing can be said *321 to be tried, in a legal sense, unless it was decided—and the judgment itself is the only evidence of what was decided. This judgment does not purport to decide upon the plaintiff’s or defendants’ title or right to the possession, but only enjoins the plaintiff from asserting a particular title, without undertaking to adjudicate upon the general title or right of possession, as between the plaintiff and defendants. Under this state of the record, if the point had been raised on the trial of the appeal, there may have been room for a grave doubt whether there was such a final judgment as authorized an appeal. But as this point has not been raised, we express no opinion upon it. It is quite evident, however, that in dealing with such a judgment, it would be altogether irregular for this Court to order the Court below to enter a final judgment, in advance of any adjudication by that Court, of all the issues raised by the pleadings.
The last opinion delivered by this Court, in the cause, will stand as the opinion and judgment of the Court, and it is ordered that the remittitur issue forthwith.
Sanderson, J., expressed no opinion upon the re-hearing.
The following cases were affirmed on authority of Hutton v. JPrisbie ( 37 Cal. 475 .)
KNOWLES v. GREENWOOD.
TRUE v. TORMEY et al,
FOWLER v. FRISBIE.
TRUE v. THOMAS.
DIXON v. BROWNLIE,
MARTIN v. FRISBIE.
BROWN v. FRISBIE.
WHITNEY v. THOMAS.