Holzer v. Read, 13 P.2d 697 (Cal. 1932). · Go Syfert
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Holzer v. Read, 13 P.2d 697 (Cal. 1932). Cases Citing This Book View Copy Cite
56 citation events (3 in the last 25 years) across 6 distinct courts.
Strongest positive: People v. Sanchez (calctapp, 2014-12-11)
Treatment trajectory · 1936 → 2026 · click a year to view as-of
1936 1981 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Sanchez (2×)
Cal. Ct. App. · 2014 · confidence medium
For that argument they cite Evidence Code section 766, which states: “A witness must give responsive answers to questions, and answers that are not responsive shall be stricken on motion of any party.” (Italics added.) As the People note, there is authority holding that courts are not required to “await the motion of [a party] to have the irresponsive answers stricken out . . . [because] the responsibility of . . . conducting the trial rests ultimately upon the judge.” (People v. Dad (1921) 51 Cal.App. 182, 185-186 .) However, it is also the case that a nonresponsive answer may be admi…
discussed Cited as authority (rule) Professional Hockey Corp. v. World Hockey Assn.
Cal. Ct. App. · 1983 · confidence medium
(See Mayer v. Beondo (1948) 83 Cal.App.2d 665, 668 [ 189 P.2d 327 ] and Holzer v. Read (1932) 216 Cal. 119,124 [ 13 P.2d 697 ].) The cross-complainant by its own acts and as part of its case in chief introduced evidence which completely negated, destroyed its claim of violation of fiduciary duty.
discussed Cited as authority (rule) Gilardi v. Hallam (2×)
Cal. · 1981 · confidence medium
The exception was applied to deny a claim of adverse possession in Holzer v. Read (1932) 216 Cal. 119, 123 [ 13 P.2d 647 ], where the occupation of the land was by mistake “with no intention on the part of the occupant to claim as his own, land which does not belong to him, but with the intention to claim only to the true line wherever it may be.” The relationship between the mistake rule and the exception was addressed in Sorensen v. Costa (1948) 32 Cal.2d 453, 459-461 [ 196 P.2d 900 ].
discussed Cited as authority (rule) Miller v. Johnston
Cal. Ct. App. · 1969 · confidence medium
These documents were examined by counsel for defendants and admitted into evidence without objection, but with the *302 court’s comment, acceded to by counsel for plaintiffs, “All right, as bearing simply on the equities. ’ ’ Defendants not only attack the sufficiency of the evidence to sustain the findings in the particulars which have been noted above, but also contend that it was error to make findings of fact and conclusions of law on this theory of the case because it had not been pleaded in plaintiffs’ complaint, nor had it been referred to in the pretrial order (see Holzer v. …
discussed Cited as authority (rule) People v. Robinson (2×)
Cal. · 1964 · confidence medium
(Holzer v. Read (1932) 216 Cal. 119, 122 [3] [ 13 P.2d 697 ]; Hirshfeld v. Dana (1924) 193 Cal. 142, 147-149 [1] [ 223 P. 451 ], and cases there cited; but see Code Civ.
discussed Cited as authority (rule) Williams v. Galloway
Cal. Ct. App. · 1962 · confidence medium
“It is a general rule of appellate review, early established and long adhered to, that questions not raised in the trial court will not be considered on appeal.” (3 Cal.Jur.2d, Appeal and Error, § 140, p. 604.) “The rule is well established in this state that an estoppel to be available must be specially pleaded.” (Holzer v. Read, 216 Cal. 119, 124 [ 13 P.2d 697 ].) The evidence as reviewed indicates no discussion or reference to any words which may be considered as estoppel, and no reporter’s transcript reference is made thereto in appellants’ brief.
cited Cited as authority (rule) People v. Reimringer
Cal. Ct. App. · 1953 · confidence medium
This position is supported by Holzer v. Read, 216 Cal. 119, 122 [ 13 P.2d 697 ].
discussed Cited as authority (rule) Perez v. Perez
Cal. Ct. App. · 1952 · confidence medium
(Holzer v. Read, 216 Cal. 119, 123 [ 13 P.2d 697 ]; 2 Cal.Jur. 263.) There is no reason whatever why this general rule should not apply to the hearing of a noticed motion, where waiver of requirements of such notice is readily accepted (see Hecq v. Conner, 203 Cal. 504 [ 265 P. 180 ], etc.) One of the grounds upon which appellant relies is that the formal order signed by Judge Traverso is a nullity because Judge Traverso did not hear the evidence.
discussed Cited as authority (rule) Epperson v. Rosemond
Cal. Ct. App. · 1950 · confidence medium
All three are affirmative defenses which must be pleaded in the answer. “(L)aches is a defense and not a condition of relief, and, if it does not appear on the face of the complaint, must be affirmatively pleaded and proven by the defendants.” (Victor Oil Co. v. Drum, 184 Cal. 226, 243 [ 193 P. 243 ] ; Lucci v. United Credit & Collection Co., 220 Cal. 492, 497 [ 31 P.2d 369 ]; Ellis v. Union Trust Co., 219 Cal. 50, 53 [ 25 P.2d 1 ] ; Ryan v. Welte, 87 Cal.App.2d 897, 905 [ 198 P.2d 357 ] ; Katz v. Enos, 68 Cal.App.2d 266, 276 [ 156 P.2d 461 ]; Lotts v. Board of Park Commrs., 13 Cal.App.2d …
discussed Cited as authority (rule) Westman v. Clifton's Brookdale, Inc.
Cal. Ct. App. · 1948 · confidence medium
(Murphy v. Coppieters, 136 Cal. 317, 320 [ 68 P. 970 ]; Holzer v. Read, 216 Cal. 119, 122 [ 13 P.2d 697 ]; 27 Cal.Jur. § 64, p. 83; 58 Am.Jur. § 670, p. 367; 3 Wigmore on Evidence (3d ed.) § 785, p. 160.) When the answer includes relevant and material facts it should be permitted to stand, although not strictly responsive.
discussed Cited as authority (rule) Riverside Rancho Corp. v. Cowan
Cal. Ct. App. · 1948 · confidence medium
Co. v. Crawford, 58 Cal.App.2d 771, 787-8 [ 138 P.2d 384 ] ; Holzer v. Read, 216 Cal. 119, 122-3 [ 13 P.2d 697 ].) Defendant relies on the evidence of a civil engineer called as a defense witness who made estimates from maps that had been introduced in evidence and expressed the opinion that there were 2,279 acres of farm land and 830 acres of hill land.
discussed Cited as authority (rule) People v. Houston
Cal. Ct. App. · 1948 · confidence medium
(People v. Willis, 30 Cal.App.2d 419 [ 86 P.2d 670 ] ; People v. Kelly, 77 Cal.App.2d 23 [ 174 P.2d 342 ]; People v. Simmons, 28 Cal.2d 699, 723 [ 172 P.2d 18 ] ; Holzer v. Read, 216 Cal. 119, 123 [ 13 P.2d 697 ]; People v. d’A Philippo, 220 Cal. 620, 625 [ 32 P.2d 962 ] ; 2 Cal.Jur. § 82, p. 263; 4 Cal.Jur. 10-yr.
discussed Cited as authority (rule) Sorensen v. Costa
Cal. · 1948 · confidence medium
The requirement of “hostility” relied on by appellant (see West v. Evans, 29 Cal.2d 414, 417 [ 175 P.2d 219 ]) means, not that the parties must have a dispute as to the title during the period of possession, but that the claimant’s possession must be adverse to the record owner, “unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter.” (4 Tiffany, Real Property [3d ed.], 425.) Appellant’s contention that respondent’s possession was not adverse is based on the statement in Holzer v. Read, 216 Cal. 119, 123 [ 13 P.2d 697 ], that “…
cited Cited as authority (rule) West Coast Life Insurance v. Crawford
Cal. Ct. App. · 1943 · confidence medium
Evidence may tend to prove the issues and yet be incompetent.” (Holzer v. Read, (1932) 216 Cal. 119, 123 [ 13 P.2d 697 ].
cited Cited as authority (rule) Mitchell v. Cheney Slough Irrigation Co.
Cal. Ct. App. · 1943 · confidence medium
(Holzer v. Read, 216 Cal. 119, 124 [ 13 P.2d 697 ]; Pasadena Park Impr.
discussed Cited as authority (rule) Sublett v. Henry's Turk & Taylor Lunch (2×)
Cal. · 1942 · signal: cf. · confidence medium
(Wright v. Roseberry, 81 Cal. 87 [ 22 P. 336 ]; cf. Holzer v. Read, 216 Cal. 119, 123 [ 13 P.2d 697 ]; see 10 Cal.Jur. 858; 120 A.L.R. 205 , 218.) The evidence relied upon in the present case to support the trial court’s finding that a written contract to pay union wages existed between the union and the employer is in the form of both documentary evidence and testimony.
Retrieving the full opinion text from the archive…
JOHN HOLZER, Respondent,
v.
E. C. READ Et Al., Defendants; JOHN MACKENZIE Et Al., Appellants
Docket No. S.F. 13917..
California Supreme Court.
Jul 30, 1932.
13 P.2d 697
1932 Cal. LEXIS 538
Frank Thunen for Appellants., Hubert C. Wyckoff, Jr., Wyckoff, Gardner & Parker and George M. Naus for Respondent.
Tyler.
Cited by 27 opinions  |  Published
TYLER, J, pro tem.

Action to quiet title to certain lands situated in the county of Santa Cruz. The land[*121] described in. the complaint consists of about fifty acres. Some seventeen persons were made defendants, all of whom defaulted except John F. MacKenzie, Maria MacKenzie, Peter Colly and Mary Ann Colly. These defendants denied title in plaintiff to a certain portion of the lands, and by way of cross-complaint alleged title to such portions in themselves by adverse possession. The trial court found all the allegations of the complaint to be true and all of the allegations of the cross-complaint of defendants to be untrue. Judgment was rendered in favor of plaintiff and against defendants, who have appealed from the judgment.

The MacKenzies claimed an irregular-shaped parcel containing approximately one acre of land, which overlaps the fifty-acre tract claimed by plaintiff. The Colly s’ claim involves the westerly line of plaintiff’s tract and a portion of the southerly line forming common boundaries between their respective lands. The main controversy is based upon the location of the proper boundary line of what is known as Rancho San Augustin. Plaintiff, in support of his claim of title, introduced testimony by three surveyors to establish the true boundary line. These witnesses located the original monuments and made surveys and, with the aid of government notes, established a retracement of the original survey which fully supported plaintiff’s claim to all of the lands. In further support thereof, plaintiff then established a connected chain of title as to the entire tract described in the complaint, beginning with a patent from the federal government dated May 20, 1870, and extending down by regular muniments of title to one Clementina M. Howe in the year 1885. Appellants concede that down to this point respondent’s chain of title is regular. A deed was then‘introduced in evidence dated December 4, 1885, running from Clementina M. Howe, James H. Howe and J. J. Johnson to Joseph Orr, but this deed does not embrace the lands in dispute. Another deed dated the twenty-ninth day of July, 1886, executed by Clementina M. Howe to John Kiley was in evidence. This last deed embraces the lands in question. There was then introduced a deed executed by John Kiley dated the thirteenth day of September, 1886, to Helena Jane Orr.

Plaintiff herein claims title under a warranty deed dated May 3, 1916. This document was in evidence and it[*122] includes the land described in the complaint. It is signed by Mrs. E. C. Read, A. F. Orr and G. J. Orr, and recites that the property described therein was duly awarded the grantors under a decree of distribution on the twrenty-fifth day of April, 1916, in the matter of the estate of Joseph Orr, deceased. At the time of the trial, the then attorney for appellants conceded that plaintiff had established a prima facie case under this deed. It is now claimed, for the first time on appeal, that respondent’s paper chain of title lacked one link, as nowhere in the record does it appear that any conveyance or transfer of title was ever made from Helena Jane Orr to Joseph Orr, for which reason, irrespective of the true location of the disputed boundary line, respondent failed utterly to prove his title. Had counsel for appellants not made the concession he did, respondent might have been able to supply evidence to complete his paper-title. Aside from the right of appellants to raise this question for the first time on appeal, the record does not support their contention of lack of proof of title in respondent.

Plaintiff did not rely alone on a connected paper chain of title, he having alleged that by himself and his predecessors in interest he became and was for twenty years prior to the commencement of the action the owner of the lands in dispute and in the possession thereof. During the course of the trial, a neighbor who had lived on adjacent land for a period of twenty-four years volunteered the statement during the course of his examination, without objection, that the property in question had belonged to Joseph Orr during his lifetime. While this evidence might have been stricken out and plaintiff thereby put to better proof, it was relevant to the issue of ownership and tended to prove such issue.

The general rules as to the weight and sufficiency of the evidence in all forms and characters of actions are applicable in determining the sufficiency of the evidence in proceedings to quiet title. Where a witness goes beyond the scope of the questions and makes an answer not responsive thereto, if it furnishes relevant facts they are none the less admissible merely because they are not specifically asked for. (2 Wigmore on Evidence, 2d ed., sec. 785.) If the answer is in itself proper evidence, the party who is examining the witness has the right to take and retain it if he chooses to do[*123] so. (Hirshfeld v. Dana, 193 Cal. 143, 148 [223 Pac. 451], and cases cited. ) While opposing counsel may move to strike it out if for any reason it is improper to be admitted, so long as it stands it is competent evidence to be considered. Where, as here, the insufficiency of the evidence is the question to be determined, full weight must be given to evidence which would have been excluded had objection been made, and even to evidence erroneously admitted against objection provided it be relevant. Evidence may tend to prove the issues and yet be incompetent. (Hayne on New Trial and Appeal, sec. 98.)

In Goode v. Smith, 13 Cal. 81, one of the questions involved was as to the ownership of land. A witness had been permitted to testify upon the subject. In discussing this evidence, the court held that while it was not the best mode of proving the fact, nevertheless no objection having been taken to its admissibility, it was proper for the purpose.

(See, also, Janson v. Brooks, 29 Cal. 214; Wright v. Roseberry, 81 Cal. 87, 91 [22 Pac. 336].)

We are of the opinion, therefore, that plaintiff, notwithstanding the break in his paper chain of record title, sufficiently proved his title by tracing back a chain descending in Joseph Orr and thence from his estate. We are of the further opinion that plaintiff’s title as proved was in no manner affected or impaired by appellant’s claim of title by adverse possession. This controversy arose over a mistaken boundary line wrongfully established by a surveyor employed by defendants. No one is here disputing plaintiff’s title to the major portion of his lands. By the great weight of authority, where the occupation of land is by a mere mistake, and with no intention on the part of the occupant to claim as his own, land which does not belong to him, but with the intention to claim only to the true line wherever it may be, the holding is not adverse. (2 Cor. Jur., p. 139, sec. 242.)

The same may be said with reference to the payment of taxes. Here there was no established boundary line by the parties, and each paid his taxes upon lands described in his deeds. Under such circumstances the question of the payment of taxes is not an element in the case. (1 Cal. Jur., p. 568, see. 50; Reynolds v. Willard, 80 Cal. 605 [22 Pac. 262];[*124] McDonald v. Drew, 97 Cal. 266 [32 Pac. 173]; Wilder v. Nicolaus, 50 Cal. App. 776 [195 Pac. 1068].)

The further contention that appellant MacKenzie is entitled to the land he claims by virtue of an estoppel in pais is also without merit. In this connection it appears from the record that MacKenzie constructed valuable improvements on the portion of the lands claimed by him and that such improvements were made in good faith. Upon this subject there was evidence to show that plaintiff aided MacKenzie in the construction of the improvements and was paid for his services. But the evidence also shows that plaintiff was misled concerning the true boundary line through the mistake of defendant’s surveyor, and he performed his services through an honest mistake concerning the true line. There must be some degree of turpitude in the conduct of a party before a court of equity will estop him from the assertion of his title. Here there was none and the invoked doctrine does not apply. (Biddle Boggs v. Merced Min. Co., 14 Cal. 279, 368; Stockman v. Riverside L. & I. Co., 64 Cal. 57 [28 Pac. 116].) Moreover defendants failed to plead an estoppel. The rule is well established in this state that an estoppel to be available must be specially pleaded. (Promis v. Duke, 208 Cal. 420, 426 [281 Pac. 613].)

) The judgment is affirmed.

Waste, C. J., Preston, J., Shenk, J., Curtis, J., Langdon, J., and Seawell, J., concurred.