Batchelder v. Baker , 79 Cal. 266 ( 1889 )

Works, J.

This is an action to quiet title to real estate. The defendant answered by a guardian ad litem, as shown by the recitals in such answer, denying the allegations of the complaint, but set up no claim or title to the property. There was judgment for the plaintiff, quieting her title, decreeing that she was the owner of the property, and that the defendant had no interest therein. The appeal is from the judgment, and is presented to us on the judgment roll.

It is contended by the appellant, —1. That no guardian ad litem was appointed by the court for the defendant, who was a minor; 2. That the judgment is not supported by the complaint; 3. That the findings do not support the judgment.

1. As to the first of these points, we cannot know from the record before us whether a guardian ad litem was appointed or not. The appeal being upon the judgment roll, we cannot look outside of it to determine the question. (Harper v. Minor, 27 Cal. 107; Sharp v. Daugney, 33 Cal. 505, 512.) Proceedings relating to the appointment of a guardian ad litem form no part of the judgment roll. (Code Civ. Proc., sec. 670; Emeric v. Alvarado, 64 Cal. 592.)

In this condition of the record we must presume in favor of the action of the court below, especially as the answer itself and the recitals in the judgment show that the appearance and answer of the defendant were by a guardian ad litem. (Sharp v. Daugney, supra; Emeric v. Alvarado, supra.)

2. The ground upon which it is claimed that the-complaint does not support the judgment is, that the complaint alleges possession only, and the judgment is that the plaintiff is the owner of the property. But the complaint alleges possession not only at the time of the commencement of the action, but for a sufficient length of time to show title in the plaintiff, which is equivalent to a direct allegation of ownership.

3. The last point made is equally groundless. It is to the effect that .the findings do not show that the defendant had no interest in the property. Such a finding was unnecessary, as the defendant set up no such interest. But the court found the facts showing the plaintiff to be the owner of the property, which was sufficient as to the matter of ownership.

Judgment affirmed.

Beatty, C. J., concurred.

Paterson, J., concurred in the judgment.