Stearns v. Los Angeles City School District (244 Cal. App. 2d 696, 1966)

SIMS, J.

— Los Angeles City School District and Los Angeles City High School District, defendants and cross-complainants, who assert an interest in the property which is the subject of this action as judgment creditors of Delicien P. Landier and Landier Investment Company, have appealed from a judgment and an amended judgment which decreed that title was vested in the plaintiffs hereinafter noted and that the Districts had no interest in the property, and which denied them relief on their cross-complaint, and, as amended, enjoined the Districts from asserting any claim to the property.

The plaintiff and cross-defendant, Redwood Empire Title Company of Mendocino County, concededly only holds record title for the other two plaintiffs and cross-defendants. Plaintiff and cross-defendant Francis A. Stearns ’ claim to a one-half interest in the property is predicated upon an agreement with Rose Landier Heiner, deceased. The latter’s one-half interest is represented by substituted plaintiff and cross-defendant Jim E. West as executor of her estate. Her acquisition of title is predicated upon a judgment she obtained against Landier and the Company which granted her specific performance of an alleged oral agreement entered into with her husband on behalf of himself and the Company. For convenience and to distinguish her from a prior wife of the judgment debtor, she and her estate will be referred to as Rose.

The Districts also named as cross-defendants the judgment debtors and Honor B. Landier. Honor, an earlier wife of Landier, eoncededly held a deed of trust on the land in question as security for payments due her from her ex-husband. Her negotiations and transactions in connection with the assignment, enforcement, reassignment and eventual transfer of this deed of trust were attacked by the Districts in their cross-complaint.

The Districts contend that the trial court erred in the following particulars: (1) by vacating an order whereby it had stayed proceedings in Mendocino County pending determination of a prior action which the Districts had commenced in Los Angeles County; (2) by sustaining the demurrers which were interposed by Redwood and Stearns and by Rose to the Districts’ original cross-complaint for money damages; (3) by denying the Districts’ motion for nonsuit at the conclusion of plaintiffs’ case; (4) by admitting evidence of the records and transcript relating to prior actions between Rose and Landier and the Company; (5) by excluding evidence offered by the Districts to show a fraudulent conspiracy between Stearns and Landier; (6) by refusing to submit to an advisory verdict of the jury, as provided in the pretrial order, the issue of whether the manner in which Rose acquired the title of the Company was in fraud of the Districts; (7) by failing to follow the verdict of the jury, which found that Stearns acquired his one-half interest in the property with the intent to benefit Landier, and in entering a contrary judgment which was not supported by substantial evidence; (8) by amending its judgment to grant injunctive relief which had not been sought in the prayer of the complaint or requested at the trial; and (9) by quieting plaintiffs’ title to land in excess of that described in the Us pendens recorded in connection with the action in which Rose secured a judgment establishing her title.

An examination of the record reflects that the court did err in failing to stay the instant action pending determination of the prior action; and that since the evidence does not compel the conclusions which were reached by the trial court and because there were errors in its rulings, the judgment should be reversed.

Summary of proceedings

The facts reflect that in November 1951 the Districts commenced an action (Los Angeles County Superior Court No. 591996) against Landier and related companies to recover $1,500,000 for alleged irregularities in connection with contracts for the transportation of pupils. On August 17, 1954 a stipulation was entered into whereby the Districts agreed to accept in full satisfaction of their claims, and Landier and the Company agreed to pay the sum of $264,776.86 in installments of $33,097.11 commencing within 60 days of the date of the stipulation and thereafter on October 20th of 1955 and each succeeding year. The agreement provided that in the event of default, judgment would be entered for double the sum due at the time of default.

Three installments were paid on this contract, but Landier and the Company were unable to pay the installment due October 20, 1957. In connection with a request to secure an extension of the time for payment of this installment Landier, on November 5, 1957, submitted a financial statement which showed the ranch property, the subject of this suit, at a value of $375,000 subject only to $56,000 due Honor, as his principal asset. Concededly title to the ranch was in the name of the Company, but he claimed its value by virtue of ownership of all of the stock of the Company. Pursuant to this application the time for payment of the installment was extended until June 30,1958.

At or about the time of securing the aforementioned extension of time Landier and Rose, whom he had held out as his wife since 1956, had meetings with Landier’s attorney concerning his obligation to the Districts, his debt to a bank for which shares of stock other than those of the Company wer. pledged by him as security, and his obligation to Rose for moneys advanced or to be advanced to assist him financially. On December 26,1957, Landier and Rose were married, and in January 1958 the attorney prepared a draft of an agreement whereby Landier would undertake to convey the ranch to Rose. This agreement was never executed.

Thereafter, dissension developed between Rose and her husband and on April 16, 1958 she filed an action for divorce, an action to recover damages for assault and battery, and an action against Landier and the Company (Mendocino County Superior Court No. 21860) to require Landier and the Company to convey the ranch to her. A lis pendens was filed in connection with the last action on that date.

On November 5, 1958, the Districts secured judgment pursuant to the stipulation filed in the original Los Angeles County action, and on November 21,1958 an abstract of that judgment was recorded in Mendocino County.

On May 4,1959 Rose’s action to secure specific performance of Landier’s oral agreement to convey the land to her came on for trial. On November 24, 1959, findings of fact and conclusions of law in favor of Rose were signed and filed. On January 20, 1960, Landier and the Company filed a notice of appeal. Judgment, however, was not signed and filed until December 30, 1960, on which date a certified copy was also recorded with the Mendocino County recorder.

On January 26, 1960 the attorney for Landier in Rose’s action advised an attorney for the Districts of the pendency and status of that action and urged that the Districts intervene.

In March 1961 it was arranged that the appeal in Rose’s action would be dismissed, and in April of that year the appeal was dismissed. Rose conveyed the property to Redwood pursuant to a holding agreement that it should hold the property for her and Stearns.

On May 16, 1961, the Districts caused an execution to be levied on the ranch property for the collection of the Los Angeles County judgment, and thereupon on May 22, 1961 commenced an action in Los Angeles County Superior Court (No. 771560) in the nature of a creditor’s bill to have various conveyances of the ranch property set aside as having been made in fraud of creditors. The action was against Landier, the Company, Redwood, Rose and others claiming under the Company or Landier. Redwood was served on May 25, 1961, and Rose sometime thereafter. These defendants appeared and filed a motion for change of venue which was denied. In connection with those proceedings it appeared that Landier, the Company, and Honor, who had all been served, were residents of Los Angeles County. (See Los Angeles City School Dist. v. Redwood Empire Title Co. (1962) 206 Cal.App.2d 398 [23 Cal.Rptr. 662], passim.)

On July 14, 1961 the present action was filed in Mendocino County Superior Court by Stearns, Redwood and Rose against the Districts and fictitious defendants.

On August 14, 1961 the Los Angeles action was amended to make Stearns a party.

On August 17, 1961 the Districts filed a demurrer and motion for stay of proceedings supported by the affidavit of their counsel in the Mendocino County proceedings. By opinion and order filed February 1, 1962, the court ordered “that all further proceedings in this action should be stayed pending final determination of Action No. 771560, in the Superior Court of the State of California, in and for the County of Los Angeles, or until the further order of the Court. ’ ’

Thereafter, on July 30, 1962, plaintiffs filed their notice of motion to vacate the prior order. By order filed November 13, 1962 this motion was granted and plaintiffs were granted leave to pursue the Mendocino County action.

On August 2, 1962 the District Court of Appeal, Second Appellate District, Division Two, affirmed the order of the Los Angeles County Superior Court which had denied a change of venue to Mendocino County (Los Angeles City School Dist. v. Redwood Empire Title Co., supra, 206 Cal.App.2d 398).

On December 4, 1962, the Districts filed in this appellate district their petition for a writ of prohibition directed to restraining the court in Mendocino County from proceeding with the action filed there. On December 17th, the petition was denied without opinion by Division Three of this court (1 Civ. 21032).

The failure to continue the stay of the Mendocino County action

The last action dictates that preliminary inquiry be directed to the question of whether the denial of the petition for a writ of prohibition is res judicata of the issues presented therein, and thereby precludes further consideration of the question which the Districts seek to have reviewed herein. The subject was recently reviewed by this court with the following conclusion: ‘ ‘Accordingly the rule is well settled that a denial by the Supreme Court or the appellate court of an application for a writ without opinion is not res judicata of the legal issues presented by the application unless the sole possible ground of the denial was that the court acted on the merits, or unless it affirmatively appears that such denial was intended to be on the merits. (Hagan v. Superior Court, 57 Cal.2d 767, 770 [22 Cal.Rptr. 206, 371 P.2d 982]; People v. Pipes, 179 Cal.App.2d 547, 552 [3 Cal.Rptr. 814]; Confidential, Inc. v. Superior Court, 157 Cal.App.2d 75, 78 [320 P.2d 546] ; McDonough v. Garrison, 68 Cal.App.2d 318, 325 [156 P.2d 983]; see Funeral Directors Assn. v. Board of Funeral Directors, supra [22 Cal.2d 104 [136 P.2d 785]], pp. 107-110.) ” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, at p. 694 [32 Cal.Rptr. 288]. In addition to the cases cited see People v. Bergholm (1960) 181 Cal.App.2d 778, 782 [5 Cal.Rptr. 608] and 3 Within, Cal. Procedure (1954) Extraordinary Writs, § 58, p. 2550; and cf. Overstreet v. County of Butte (1962) 57 Cal.2d 504, 506 [20 Cal.Rptr. 631, 370 P.2d 335]; and Within, op. cit., § 67, p. 2562, when the proceedings are determined on the merits.)

Respondents seeh to come within the “sole possible ground” emphasized in the foregoing quotation. Examination of the eases cited reflects no situation where the exception was applied. In McDonough v. Garrison, where the emphasized words first occur, the following appears: “At the threshold of this appeal we are met by the contention that, inasmuch as the precise jurisdictional points now urged for a reversal of the judgment were urged on the unsuccessful petitions for prohibition, and inasmuch as the only points briefed on those proceedings were the jurisdictional questions, the denials of such petitions must have been on the merits, and therefore such denials without opinion are res judicata, and constitute binding determinations that the trial court had jurisdiction to proceed as it did.” (68 Cal.App.2d at pp. 324-325.) The majority opinion, which withstood a petition for hearing in the Supreme Court, rejected the view, expressed in the dissent, that the prior denial of a writ by the District Court of Appeal, and denials of rehearing of that ruling, and of an original application for a writ by the Supreme Court, were res judicata of the issue presented. It stated the rule as set forth in the above quotation and found two reasons why the petition might have been denied which are also pertinent here: first, “The various writs could have been denied because the courts involved felt that, although there was an apparent excess of jurisdiction, an appeal from the final judgment was a plain, speedy and adequate remedy. It is elementary law that even though a trial court is acting in excess of its jurisdiction, an appellate court may, in its discretion, refuse to interfere by prohibition if the same questions may be passed on by an appeal after judgment, and if, in the opinion of the appellate court such remedy is plain, speedy and adequate” (id., at p. 328) ; and, secondly, “The lower court had ordered a trial de novo before a jury. That order was not final. It was no more final than an order on a demurrer prior to entry of judgment is final. The trial court could have changed its order any time before trial. When the petitions for writs of prohibition were filed the appellate courts may have denied them because they felt that the trial court would correct its error and not enter a final order in excess of its jurisdiction. The possibility that this may have been the basis of the denials prohibits such denials from becoming res judicata on the merits” (id., at p. 329) .

The Districts seek summary resolution of the issue on the ground that the trial court having made its first decision on the issue presented had no power to set it aside or amend it. (See Maxwell v. Perkins (1953) 116 Cal.App.2d 752, 755 [255 P.2d 10].) The case relied upon involved a motion for change of venue, which at the time was an appealable order. (Code Civ. Proc., § 963, subd. 2, prior to amendment by Stats. 1961, ch. 1059, § 2, p. 2748; Harris v. Alcoholic Beverage etc. Appeals Board (1961) 197 Cal.App.2d 759, 762 [18 Cal.Rptr. 151].) Moreover, if the order changed the place of trial, the court of necessity had divested itself of jurisdiction over the ease.

In De la Beckwith v. Superior Court (1905) 146 Cal. 496 [80 P. 717], the court issued a writ of mandate compelling the trial court to consider a motion to vacate its order which had sustained the demurrers of certain defendants, and to bring the defendants before the court. In the course of its opinion the court stated: “The ruling of the court upon the demurrers had not in any proper sense of the term become the law of the case. It is a most common occurrence for a trial court to change its rulings during the progress of a trial, upon questions of law, and no one would contend that it is not within its power to do so, or that it should not do so when satisfied that the former ruling was erroneous. A ruling on demurrer occupies no better position in this regard than any other ruling from which an appeal could not be taken, and has frequently been disregarded when the same points subsequently arose in the same case in another way.” (146 Cal. at p. 499; and see Vertex Inv. Co. v. Schwabacher (1943) 57 Cal.App.2d 406, 409-410 [134 P.2d 891] ; Tiffany Productions, Inc. v. Superior Court (1933) 131 Cal.App. 729, 731-738 [22 P.2d 275] ; and City of Los Angeles v. Oliver (1929) 102 Cal.App. 299, 325-326 [283 P. 298].) In Vertex it is recognized that such a determination “may be changed for no other reason than that the judge is of the view that his first ruling was erroneous. ’ ’ (57 Cal.App.2d at p. 410.) The order regarding the stay was not appealable. (Code Civ. Proc., § 963; Rhodes v. Craig (1863) 21 Cal. 419, 423; Pacific Engine etc. Works v. Superior Court (1955) 132 Cal.App.2d 739, 745 [282 P.2d 937]; San Joaquin etc. Assn. v. Herschel etc. Co. (1955) 130 Cal.App.2d 119, 122-123 [278 P.2d 448] ; and see Bailey v. Fosca Oil Co., Ltd. (1962) 211 Cal.App.2d 307, 308 [27 Cal.Rptr. 454]; but cf. Code Civ. Proc., § 597, and Woodhouse v. Pacific Elec. Ry. Co. (1952) 112 Cal.App.2d 22, 25 [245 P.2d 701].)

Finally, it is noted that one of the alternatives on which the stay was expressly conditioned was “until further order of the Court. ’ ’ This was a clear reservation of jurisdiction to take future action to dissolve the stay (see Lord v. Superior Court (1946) 27 Cal.2d 855, 856 and 858 [168 P.2d 14]). The Districts contend that it could only exercise that jurisdiction upon termination of the prior Los Angeles County action. However, the power to act was there, and the critical question is whether or not it was properly exercised.

The Districts rely upon the general principle voiced in Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76 [293 P.2d 18] as follows: “General principles applicable to controversies in which the same parties and the same subject matter are involved are these: When two or more tribunals in this state have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion of all other tribunals in which the action might have been initiated. Thereafter another tribunal, although it might originally have taken jurisdiction, may be restrained by prohibition if it attempts to proceed. [Citations.] One reason for the rule is to avoid unseemly conflict between courts that might arise if they were free to make contradictory decisions or awards at the same time or relating to the same controversy; another reason is to protect litigants from the expense and harassment of multiple litigation. [Citations.] ” (46 Cal.2d pp. 81 and 82. In addition to the cases collected and analyzed at p. 82, see Cutting v. Bryan (1929) 206 Cal. 254, 257 [274 P. 326]; Morrisette v. Superior Court (1965) 236 Cal.App.2d 597, 599-600 [46 Cal.Rptr. 153] ; Padula v. Superior Court (1965) 235 Cal.App.2d 567, 571 [45 Cal.Rptr. 500] ; Mungia v. Superior Court (1964) 225 Cal.App.2d 280, 283 [37 Cal.Rptr. 285] ; Figgs v. Superior Court (1962) 204 Cal.App.2d 231, 233 [22 Cal.Rptr. 199]; Robinson v. Superior Court (1962) 203 Cal.App.2d 263, 267 [21 Cal. Rptr. 475] ; Cade v. Superior Court (1961) 191 Cal.App.2d 554, 559 [12 Cal.Rptr. 847] ; Burch v. Slamin (1955) 137 Cal.App.2d 1, 3 [289 P.2d 498] ; and cf. San Martin v. Superior Court (1959) 169 Cal.App.2d 14, 16 and 17-18 [336 P.2d 618]. Further discussion is found at 1 Within, Cal. Procedure, Jurisdiction, §§ 193-206, pp. 459-474; Procedure Before Trial (Cont. Ed. Bar, 1957) pp. 147-157.) As noted in Scott, the situation is analogous to that where a plea in abatement is interposed by either demurrer or answer on the ground that a prior action is pending between the same parties for the same cause. (Code Civ. Proc., § 430, subd. 3 and § 597; and see Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 70-74 [42 Cal.Rptr. 473].)

The crux of the controversy herein is the application of this rule as laid down in the respective eases of Myers v. Superior Court (1946) 75 Cal.App.2d 925 [172 P.2d 84], upon which the trial court relied in granting the original order for the stay of proceedings, and Robinson v. Superior Court, supra, 203 Cal.App.2d 263 which the trial court understood to require a contrary result. Before analyzing these opinions it is important to determine the respective parties and subject matter involved in the Los Angeles and Mendocino actions.

From the decision reported in 206 Cal.App.2d 398, it appears that the Los Angeles action was brought by the Districts as plaintiffs, and that Landier, the Company, Honor, Rose and Redwood were named as defendants. The amended complaint in the Los Angeles action which was brought to the attention of the Mendocino County court reflects that the foregoing and Stearns, and others allegedly claiming under Landier or the Company, were joined as defendants. The Mendocino action involves Redwood, Stearns and Rose as plaintiffs, and in addition to the Districts, one Burnette, who is named in the Los Angeles action as a defendant, served in the Mendocino action as a fictitious defendant.

The fact that Stearns was not named in the original complaint would not prevent priority of jurisdiction attaching to the Los Angeles action, because he could always be, as he was, added as a party and would have the right to intervene by cross-complaint. (Figgs v. Superior Court, supra, 204 Cal.App.2d 231, 233; M. H. Golden etc. Co. v. Superior Court (1950) 98 Cal.App.2d 811, 816 [221 P.2d 218]; Myers v. Superior Court, supra, 75 Cal.App.2d 925, 931; and see Gorman v. Superior Court (1937) 23 Cal.App.2d 173, 176-177 [72 P.2d 774].)

The subject of the Los Angeles action has been determined to be “an action in the nature of a creditors bill to have various conveyances of certain real property set aside as having been made in fraud of creditors. . . . The complaint sounds in fraud and seeks to remove obstructions fraudulently thrown in the way of realizing upon executions issued in furtherance of a valid final judgment.” (206 Cal.App.2d at pp. 400 and 402.) In the first count of their amended complaint in the Los Angeles action the Districts alleged fraud and collusion of Bose, Landier and the Company in connection with the judgment obtained by Bose on December 30, 1960 in Mendocino County Action No. 21860. In the seventh count they allege that Bose’s conveyance to Bedwood was to hinder, delay and defraud the creditors of Landier. In the ninth count they allege that Stearns acquired his interest with knowledge of the foregoing. The prayer includes requests that the judgment referred to be set aside, that the conveyances from Bose to Bedwood and Stearns be set aside, and that the property be sold under the writ of execution issued in the original Los Angeles action.

The Mendocino County action is entitled “Complaint to Quiet Title and For Declaratory Belief.” It specifically alleges that the Districts claim an interest in the property by virtue of the abstract of judgment and writ of execution levied on the Mendocino property. It further alleges that plaintiffs claim under the judgment obtained in Mendocino County Action No. 21860, and “That a controversy exists between plaintiffs and defendants concerning the legal effect of the two title chains above set forth, plaintiffs claiming that the title of Bose Landier Heiner is paramount and defendants claiming that their execution levy is paramount.” The prayer is that plaintiffs’ title be quieted against all claims of the defendants and that they have judgment declaring that their title is paramount over defendants. There can be no question but that both actions involve the validity and effect of the judgment in the earlier Mendocino County action between Bose and Landier and the Company. Nor can it be questioned that a judgment on this question in either action would be res judicata in the other.

In Myers both actions involved a contract for the sale and purchase of certain real and personal property in Calaveras County. The first action served was that brought by the purchasers in Sacramento County “for the specific performance of a contract relating to such personal and real property . . . and for other relief of a personal character. ...” The action subsequently filed in Calaveras County was by the vendor “to quiet title to personal as well as real property” (75 Cal.App.2d at p. 930). The court granted a peremptory writ of prohibition to restrain the Calaveras County court from proceeding with the trial of the quiet title action.

In Cade v. Superior Court, supra, 191 Cal.App.2d 554, Myers was analyzed as follows: “1. Where two tribunals have concurrent jurisdiction over the same parties and subject matter, the tribunal in which jurisdiction first attaches is entitled to retain it exclusively and prohibition lies to restrain the other tribunal from taking any further proceedings pending the complete exercise thereof.

“2. The fact that the action filed in Calaveras County was one to try title did not entitle that court to proceed with the action where the subject matter of the action was essentially transitory because personal property was involved.

“3. The fact that the parties to the two actions were not entirely identical does not preclude petitioners from prosecuting their action to completion because the Sacramento County Superior Court has jurisdiction to bring in all the necessary parties.

“4. It is also of little moment that the remedies sought by the two actions are not precisely the same. The Superior Court of Sacramento County has the power and duty to litigate all the issues and grant all the relief to which any of the parties may be entitled under the pleadings. The defendant in the Sacramento action may obtain the relief she seeks by filing her answer, denial or cross-complaint therein.

“5. If both actions are allowed to proceed, the petitioner will be subjected to two trials over one controversy. A mere statement of the situation is sufficient to demonstrate that the entire matter should be heard and determined in one court and indicates that the issuance of the writ is necessary to prevent an injustice. Under these circumstances, the place of trial is governed by Code of Civil Procedure, section 395, covering ‘all other cases.’ (See also 1 Within, California Procedure (1954) 460-469, 707-715; 13 Cal.Jur.2d, §§ 92 to 96, 99 to 100, pp. 604-613, 619-625; 51 Cal.Jur.2d, § 14, p. 30.) ” (191 Cal.App.2d at pp. 558-559.)

In Cade, original jurisdiction was secured by the Los Angeles County Superior Court in an action brought by a property owner who alleged that the defendants who lived or did business in that county held usurious loans secured by encumbrances on his propertj^ in San Bernardino County. He sought appropriate relief including a restraint of threatened foreclosure. The beneficiaries under the deeds of trust who were defendants in the Los Angeles County action countered with an action in San Bernardino County to quiet title to their rights under the deeds of trust, for declaratory relief in regard to the property owner’s claims, and for a declaration that they had the right to foreclose by sale. The court granted a writ of prohibition restraining proceedings in the latter action. No attempt was made to analyze the nature of the San Bernardino action as transitory or local, but the court contented itself with determining that the Los Angeles County action was a personal action and transitory in character; and that the parties and the notes and trust deeds involved in the two actions were the same. (191 Cal.App.2d at pp. 556 and 559.)

In Robinson the general doctrine upon which the Districts rely was qualified. The first action was one filed in Merced County for declaratory relief “to determine the respective rights and obligations of the plaintiffs and numerous defendants arising out of written agreements for the drilling of two water wells on property of petitioners in Kings County.” (203 Cal.App.2d at p. 265.) After being served with summons in that action, in which it was designated as a joint venturer with a signatory to one of the contracts involved, a material-man brought an action in Kings County to establish and enforce a materialman’s lien (id.). The court concluded: “ [T]here appears to be a vital difference in the parties, the subject matter, and the remedies in the two eases, and the writ of prohibition should not issue.” (Id. at p. 271.)

In Robinson the court recognizes the general rule which was applied in Myers and Cade, but applies the references in each case to the fact that the court found the action away from the situs of the land was transitory (id. pp. 269-270), to a requirement that both actions be transitory. The opinion recites: “However, a basic requirement for invoking these rules is that the courts of the two counties shall have concurrent jurisdiction. And we find that Merced County and Kings County do not have concurrent jurisdiction of this entire controversy, for article VI, section 5, of the California Constitution provides that: ‘. . . all actions . . . for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated. ’ This requirement is jurisdictional and cannot be waived. If a suit for the foreclosure of a mechanic’s or materialman’s lien is filed in a county other than that in which the land is located, the suit must be dismissed. [Citations.] Kings County is the only county in the state in which an action to foreclose the mechanic’s lien could legally be commenced. If a suit solely for that purpose had been filed by Roscoe Moss Company in Merced County, the court would be wholly without jurisdiction; there could be no waiver by stipulation or otherwise of the constitutional requirement, and any judgment which might be rendered would be absolutely void. The same observation applies to the cross-complaint for the foreclosure of the lien; the Merced court could not foreclose the lien in Kings County.” (Id. pp. 267-268.) This substitutes a test of concurrent jurisdiction to award the same remedy for concurrent jurisdiction over the subject matter. There is no reason why the properly filed lien action could not be stayed, as was the foreclosure in Cade, until the issues common to both actions were resolved.

In Figgs v. Superior Court, supra, 204 Cal.App.2d 231, the original Los Angeles County action was “for declaratory relief on a contract, and ... a demand that title and possession of Tehama County land be restored to plaintiff.” Plaintiff’s vendor appeared in that action. Thereafter Figgs, a successor in interest to the foreclosing vendor, who had been named in an amended complaint in the Los Angeles action, but who had not yet been served therein commenced an action to quiet title in Tehama County. He then sought a writ prohibiting the further prosecution of the Los Angeles action as to him. The court denied the writ and concluded: ‘‘When actions are pending in two different superior courts involving the same parties and the same subject matter, priority attaches when a court first assumes jurisdiction through the service of process on a defendant. (Cade v. Superior Court, 191 Cal.App.2d 554 [12 Cal.Rptr. 847] ; Gorman v. Superior Court, 23 Cal.App.2d 173 [72 P.2d 774].) It here appears that the respondent Superior Court of Los Angeles acquired jurisdiction of the controversy not later than October 18, 1960, through the service of process or through the voluntary-appearance of the defendant, Okay Improvement Corporation, which is the equivalent of personal service. (Code Civ. Proc., § 416.) This was long before the commencement of the quiet title action in Tehama County. Figgs argues that the Los Angeles court did not obtain priority as to him in October 1960 because he did not become a party to the Los Angeles action until April 1961. However, priority is based upon jurisdiction over the controversy, not merely jurisdiction over the individual who has been served. In both the Cade and Gorman cases it appears that priority attached when summons was first served on one defendant, even though other defendants had not been served. Furthermore, as the court pointed out in the Gorman case, the court ‘acquired jurisdiction over the whole litigation with full power to bring in all necessary parties and make a complete adjudication of the entire controversy through the fact that process of that court was first served. ’ (23 Cal.App.2d at p. 177.) The purpose of the rule is to avoid the duplication and confusion of multiple actions. If, as Figgs contends, priority did not apply to the whole controversy, and new priorities could be acquired party by party, the result would be chaos. ’ ’ (204 Cal.App.2d at p. 233.) Unfortunately there is no mention of Robinson, supra> or of the effect of section 5 of article VI of the California Constitution. It appears clear, however, that the result cannot be reconciled with the language of Robinson which requires that each court have power to grant the same relief, or with the holding of the trial court in this case.

The true test is whether or not the determination in the first suit would be res judicata in the second suit. (See Lord v. Garland (1946 ) 27 Cal.2d 840, 848 [168 P.2d 5]; San Martin v. Superior Court, supra, 169 Cal.App.2d 14, 16.) In Myers the court stated: “Likewise of little moment is the circumstance that the remedies sought by the two actions are not precisely the same. [Citations.] The significant fact is that the Superior Court of Sacramento County has the power and is charged with the duty of litigating all the issues and giving all the relief to which any of the parties may be entitled under the pleadings. [Citation.] And as far as identity of issues is concerned, it is apparent that what the plaintiff in the Calaveras action seeks is a declaration that the defendants therein, petitioners herein, have no right, title, or interest in the property involved, and that in order to quiet title against them it would be necessary for the court to determine that they have no rights as purchasers under the contract of sale, which rights are the very subject of the action in Sacramento County.” (75 Cal.App.2d at p. 931.) So here the plaintiffs in the instant Mendocino County case sought a declaration that the Districts had no right, title or interest in the property involved, and in order to quiet title against the Districts it was necessary for the Mendocino court to determine that they had no rights under the abstract of judgment or levy of execution because the judgment in action No. 21860 was not only valid and binding as to the parties thereto, but also in respect of the Districts as creditors of Landier and the Company, which rights were the very subject of the Los Angeles action.

“It is of little moment that the remedies sought by the two actions are not precisely the same. The significant fact is that the superior court in the Tulare action has the power and is charged with the duty of litigating all the issues and giving all the relief to which either party may be entitled under the pleadings. (Myers v. Superior Court, 75 Cal.App.2d 925, 931 [172 P.2d 84].)” (Padula v. Superior Court, supra, 235 Cal.App.2d 567 at p. 571.) The cases involving actions growing out of the marital relationship recognize that an action for divorce and an action for separate maintenance involve the same subject matter within the general rule under discussion. (Mungia v. Superior Court, supra, 225 Cal.App.2d 280, 283 ; Rilcoff v. Superior Court (1942) 50 Cal.App.2d 503, 506 [123 P.2d 540]; and cf. San Martin v. Superior Court, supra, 169 Cal.App.2d 14, 17.) Similar considerations apply in a conflict between a child custody award in a divorce proceeding and an action for the appointment of a guardian for the same child. (Greene v. Superior Court (1951) 37 Cal.2d 307, 312 [231 P.2d 821].) More to the point are the cases where the first action seeks to affect the creditors’ right in land which lies in another county (Figgs v. Superior Court, supra, 204 Cal.App.2d 231, 232; Cade v. Superior Court, supra, 191 Cal.App.2d 554, 559; Myers v. Superior Court, supra, 75 Cal.App.2d 925, 929) particularly in view of the fact that liens must be enforced in the county where the land lies. (Cal. Const., art. VI, § 5; and see Hartwick v. Superior Court (1959) 174 Cal.App.2d 809, 811 [345 P.2d 304].)

The propriety of giving priority to the action in which the Los Angeles Superior Court first obtained jurisdiction over the parties and the subject matter is, of course, dependent upon the validity of the exercise of that jurisdiction. It has been determined by the application of established principles that the provisions of section 5 of article VI of the state Constitution did not preclude the Los Angeles County court from assuming jurisdiction of the action to set aside the conveyances. (Los Angeles City School Dist. v. Redwood Empire Title Co., supra, 206 Cal.App.2d 398, 402-403; and see Woodbury v. Nevada etc. R. Co. (1898) 120 Cal. 463, 465-466 [52 P. 730]; Beach v. Hodgdon (1884) 66 Cal. 187, 188 [5 P. 77]; Heffernan v. Bennett & Armour (1944) 63 Cal.App.2d 178, 182-183 [146 P.2d 482] ; Alpha M. & S. Co. v. Ruby Mines Co. (1929) 97 Cal.App. 508, 512 [275 P. 984] ; but cf. Rice v. Schubert (1951) 101 Cal.App.2d 638, 642 [226 P.2d 50] ; and see 1 Chadbourn, Grossman, Van Alstyne, California Pleading (1961) § 266, pp. 182-184; and 1 Witkin, op. cit., Actions, §§ 192-194 and 214, par. (c), pp. 707-710 and 728; Procedure Before Trial (Cont. Ed. Bar, 1957) p. 172.) The appellate decision in the Los Angeles County ease also upheld the right of that court to proceed despite the provisions of section 392 of the Code of Civil Procedure which govern actions involving real property. (206 Cal.App.2d at pp. 403-405; cf. Rice v. Schubert, supra, 101 Cal.App.2d 638, 640-642; and see Mungia v. Superior Court, supra, 225 Cal.App.2d 280, 285; Cade v. Superior Court, supra, 191 Cal.App.2d 554, 559; and M. M. Golden etc. Co. v. Superior Court, supra, 98 Cal.App.2d 811, 816 in which the question of venue was left open; and 1 Witkin, op. cit., Actions, §§ 195-196 and § 214, par. (c) pp. 710-712 and 728 ; Procedure Before Trial, op. cit., pp. 173-174.) This portion of that decision has been criticized. (See Chadbourn et al. op cit. (1966 Supp.) §§ 266 and 283, pp. 31 and 33.) Nevertheless it remains the law of the case insofar as the Los Angeles County action is concerned and binds any party herein who appeared before that court in person, or by representation of his interest by another.

It is concluded therefore that the Los Angeles County Superior Court properly first acquired jurisdiction over the subject matter of the validity of the proceedings whereby Landier and the Company were divested of any interest in the Mendocino ranch and over the parties who were concerned therewith. The Mendocino court erred in vacating its order which had stayed the proceeding in that county pending the determination of the Los Angeles action. (See Figgs v. Superior Court, supra, 204 Cal.App.2d 231, 233 and the companion ease of Ponderosa Sky Ranch v. Okay Improv. Corp. (1962) 204 Cal.App.2d 227, 231 [22 Cal.Rptr. 90].)

Is it too late to lock the stable now that the horse has been stolen ? Where a trial court fails to stay an action so that arbitration may proceed, a judgment on the merits will be reversed. (Tas-T-Nut Co. v. Continental Nut Co. (1954) 125 Cal.App.2d 351, 358-359 [270 P.2d 43] ; and see San Joaquin etc. Assn. v. Herschel etc. Co., supra, 130 Cal.App.2d 119, 122-123.) Similarly the failure to entertain a plea in abatement has led to reversal although a judgment has been rendered on the merits. (Baker v. Eilers Music Co. (1917) 175 Cal. 657, 658-659 [166 P. 1008]; Conrad v. West (1950) 98 Cal.App.2d 116, 118-119 [219 P.2d 477]; and see Collins v. Ramish (1920) 182 Cal. 360, 366-369 [188 P. 550].)

The court in Collins v. Ramish, supra, notes: “ [W]e would not be warranted in giving a direction for dismissal or abatement of the action where it is clearly made to appear that the effect thereof would be to accomplish injustice.” (182 Cal. at p. 367.) It refused to order a dismissal or abatement but remanded the case because it appeared that the prior action, pending an appeal, would be dismissed.

In Bank of America etc. Assn v. Cohen (1937) 21 Cal.App.2d 510 [69 P.2d 875], the court found that the defendant waived the plea in abatement by refusing to join in a dismissal of the prior action in which he had asserted a consolidation. The court observed: “The defendants in this action do not contend at any place in the briefs that there has been a miscarriage of justice or that prejudice resulted to them from the ruling. If the court had sustained the plea in abatement it would have resulted merely in the continuance of the ease, sending the witnesses home to come back again, expense and delay. The defendants do not point out to us anything so sacred about the filing-stamp on the back of a complaint that it would justify a reversal in this court after a trial on the merits in the superior court. The date mark is not a substantial difference and judgment on either complaint if once obtained will suffice. An appellant is entitled to assign for error only such proceedings in the trial court as injuriously affect him.” (21 Cal.App.2d at pp. 512-513.) That ease may well be limited to its facts which reflect that the cases were pending before the same court and that the objecting party not only refused to join in a dismissal of the prior action, but also refused to stipulate to a consolidation. It does, however, prompt inquiry to determine whether any purpose would be served by reversing the judgment entered in this case and remanding the case so that the litigation can proceed in an orderly manner with priority in the Los Angeles County action. If there are no errors in this record, and the evidence compels the result which has been obtained, such a reversal would appear frivolous. (See state Constitution, art. VI, § 4%; Fidelity & Deposit Co. v. Claude Fisher Co. (1958) 161 Cal.App.2d 431, 435 [327 P.2d 78]; and Forrest v. Fink (1925) 71 Cal.App. 34, 38-39 [234 P. 860].) Attention is therefore directed to the errors alleged by the Districts and the sufficiency of the evidence.

The demurrer to the cross-complaint

In their original cross-complaint, which was filed in this action after the trial court had vacated the order which had stayed proceedings and had overruled their demurrer to the plaintiffs’ complaint, the Districts sought to recover money damages for alleged fraud. A first cause of action alleged that Rose, Landier and the Company fraudulently entered into an agreement in the latter months of 1957 and January 1958 for the purpose of insulating the ranch from the claims of the Districts, and that the purpose of said agreement was further effectuated by the judgment secured by Rose against Landier and her subsequent conveyance to Redwood. In a second cause of action attack was made on the theory that Honor, Stearns and Landier had conspired to defeat the Districts’ claims hy calling off the original foreclosure which one Champlin had started on Honor’s claim, and by the subsequent transfer of the deed of trust to a nominee of Stearns. In a third cause of action the Districts attacked the transaction whereby Landier’s appeal from the judgment in favor of Rose was dismissed and Stearns ended up as the holder of a one-half interest in the property.

Landier, the Company, and Honor filed a joint answer to the cross-complaint. Stearns and Redwood jointly and Rose each filed a demurrer to this cross-complaint, which demurrers were sustained by the court.

The Districts allege error, and claim prejudice because if they were entitled to secure money damages for fraud, they were entitled to a jury trial, whereas, if they are reduced to a claim of an equitable interest in the property, there was no right to a jury.

The pleadings reflected that record title was in Redwood for the benefit of Rose and Stearns. Under these circumstances, Redwood, Rose and Stearns being the alleged transferees receiving the property in fraud of creditors, the court properly held that the creditor was relegated to his rights against the property and could not recover money damages from those who still held the property. (Kuzmicki v. Nelson (1950) 101 Cal.App.2d 278, 280 [225 P.2d 233]; Hy-Lo Unit & Metal Products Co. v. Ryon (1937) 21 Cal.App.2d 38, 43 [68 P.2d 393]; and cf. Aggregates Assoc. Inc. v. Packwood (1962) 58 Cal.2d 580, 591 [25 Cal.Rptr. 545, 375 P.2d 425] ; Swinford v. Rogers (1863) 23 Cal. 233, 236; and Pedro v. Soares (1937) 18 Cal.App.2d 600, 604-605 [64 P.2d 776].)

The Districts seek to avoid the effect of the foregoing authorities, which govern the situation where a transfer in fraud of creditors is concerned, by reference to the principle that a defrauded person may elect to seek return of his property or sue for damages (see 23 Cal.Jur.2d, Fraud and Deceit, §§51 and 55, pp. 128-129 and 137). The only fraud and deceit alleged is that of Landier in representing his net worth to the Districts for the purpose of securing an extension of time for the payment of the October 1957 installment, when he, allegedly, at the same time was taking steps to divest himself of his principal asset. The remaining parties were free to receive such property as Landier or others might convey to them, and to take such action as they might be advised to protect their own interests, subject, however, to the creditors’ right to show in equity that a conveyance was in fact in fraud of creditors, or that property was in fact held for the benefit of the debtors or either of them.

The sufficiency of plaintiffs’ case

By demurrer, which was overruled, and by subsequent motion for nonsuit the Districts attacked the sufficiency of the case alleged and proved by plaintiffs. These facts were: the judgment which Rose had obtained against Landier and the Company, a stipulation that the property had been conveyed to Redwood by Rose to be held for the benefit of Rose and Stearns, and the abstract of judgment and execution which ran against any interest of Landier and the Company in the property.

It is the Districts ’ contention that the recording of the instruments against the interests of Landier and the Company cannot possibly be considered a cloud on the interests of plaintiffs because they are not in plaintiffs’ chain of title. The strategy behind this contention was to force plaintiffs to allege that the cloud on their title was the pending Los Angeles Superior Court action, which assumedly would thereby strengthen the contention that since the subject matter of the two actions was the same, the Mendocino action should be stayed. Conversely, if plaintiffs were dismissed or nonsuited in Mendocino County, the Los Angeles action would stand alone.

The question is discussed and resolved adversely to the Districts in Miller v. Price (1930) 103 Cal.App. 650 [284 P. 1035], wherein it is stated: “In this behalf it is argued that an execution issued in an action in which the plaintiff was not a party, and the levying thereof upon the lands claimed by him, fail to east a cloud upon the title of the plaintiff, as it would appear from the record that the plaintiff, not being named as a party, the proceeding is void upon its face, and therefore an action in equity to remove the cloud would not lie. This contention of the respondents appears to be well taken, as appeared in the case of Russ & Sons Co. v. Crichton, 117 Cal. 695 [49 P. 1043], and the cases there cited. This, however, does not relieve the respondents from liability if they are otherwise sufficiently charged in the plaintiff’s complaint. While the weight of authority is in support of the contention that equity will not interfere to remove a cloud upon title to real estate where the invalidity of the instrument said to east such cloud appears upon the face thereof, this apparent defect in affording a land owner a remedy has been obviated by section 738 of the Code of Civil Procedure relative to adverse claims. In Castro v. Barry, 79 Cal. 443 [21 P. 946], the Supreme Court had before it the question of when an action would lie to determine an adverse claim, rather than by a proceeding in equity to remove a cloud. It is there said, quoting section 738: ‘An action may be brought by any person against another who claims an estate or interest in property, adverse to him, for the purpose of determining such adverse claim. The distinction between the two kinds of action is clear. They are different not merely in form, but in purpose. In the former case the proceeding is aimed at a particular instrument, or piece of evidence, which is dangerous to the plaintiff’s rights, and which may be ordered to be destroyed in whosesoever hands it may happen to be. While in the latter, the proceeding is for the purpose of stopping the mouth of a person who has asserted or is asserting a claim to the plaintiff’s property, whether such claim be founded upon evidence or utterly baseless. It is not aimed at a particular piece of evidence, but at the pretensions of an individual. . . . The statute enlarges the class of cases in which equitable relief could formerly be sought in the quieting of title. ’ . . . From which it follows that the levying of an execution upon the property of one person, under the claim that it belongs to a third person, would entitle the plaintiff to begin an action immediately to determine such adverse claim, ...” (103 Cal.App. at pp. 653-654; and see Birch Ranch & Oil Co. v. Campbell (1941) 43 Cal.App.2d 624, 628 [111 P.2d 445]; and Dorris v. McManus (1906) 3 Cal.App. 576, 581-582 [86 P. 909].)

Rulings admitting evidence

The complaint alleges: “Plaintiffs herein claim to own said property as a result of the judgment in favor of . . . Rose . . . against . . . Landier and . . . Company ... in action . . . No. 21860. ...” The Districts generally denied the allegations of the complaint. In their amended cross-complaint, the allegations of which were incorporated by reference in their answer, they stated that action No. 21860 was filed simultaneously with an action for divorce, that Rose recovered judgment therein, and that her assertion of ownership was predicated upon a prior unexecuted agreement and was in fraud of creditors. Issue was joined as to whether or not the title acquired by the judgment in action No. 21860 could be set aside to protect the interest of creditors, and was so recognized in the pretrial proceedings.

At the trial, in the course of the cross-examination of the attorney who had represented Landier in the divorce, quiet title, and assault and battery actions, the attorney for Rose had him identify copies of the clerk’s and reporter’s transcripts in the quiet title action, a copy of the clerk’s file in the divorce action, and a copy of the clerk’s transcript in the assault and battery action. The first were offered to prove the scope of the issues litigaged and also to prove the contested nature of the earlier quiet title proceedings. The latter were offered to show the adversary and hostile nature of the simultaneous litigation between the parties. These documents were received in evidence over the Districts ’ objections.

The Districts never contended that the trial leading to the judgment in action No. 21860 was collusive and conceded that it was an adversary proceeding which was bitterly contested. The fraud complained of was Rose’s use of the prior negotiations, which allegedly were designed to free the debtors’ property from the Districts’ claim, to her own advantage, and the subsequent conduct, which also involved Stearns, whereby the appeal was dismissed.

The errors complained of are that the trial court relied upon the findings in the earlier action in arriving at findings adverse to the Districts in this action, and that the trial court had before it the testimony of witnesses whom the Districts never had a chance to examine.

The evidence consisting of the clerk’s and reporter’s transcripts of the prior quiet title action were material and competent to show the issues raised and the scope of the prior action. (See Hall v. Coyle (1952) 38 Cal.2d 543, 545-546 [241 P.2d 236]; Olwell v. Hopkins (1946) 28 Cal.2d 147, 151 [168 P.2d 972]; United Bank & Trust Co. v. Hunt (1934) 1 Cal.2d 340, 346-347 [34 P.2d 1001]; Steiner v. Thomas (1949) 94 Cal.App.2d 655, 658 [211 P.2d 321]; City of Los Angeles v. Moore (1916) 31 Cal.App. 39, 41 [159 P. 872]; and Page v. Garver (1907) 5 Cal.App. 383, 386 [90 P. 481].) Although the foregoing eases deal with the question of determining whether the prior action was res judicata between the parties or their successors in interest—a subject hereinafter reviewed—the materiality was established here by the issue which was raised by the Districts as to whether or not the prior judgment was predicated upon alleged agreement expressly designed to defraud creditors. Moreover, despite the stipulation, evidence concerning those proceedings, and as well as the divorce and tort actions, was material and competent on the issue of good faith and to show that the judgment was not collusive. (Cf. Hy-Lo Unit & Metal Products Co. v. Ryon, supra, 21 Cal.App.2d 38 ; Pedro v. Soares, supra, 18 Cal.App.2d 600; and Hopkins v. White (1912) 20 Cal.App. 234 [128 P. 780], on rehearing pp. 248, 249, where it is recognized that the acquisition of title by the transferee through judicial proceedings does not prevent setting aside the transfer at the instance of a creditor.)

Plaintiff Rose further contends that the admissions of Landier would be admissible against the Districts. (See Code Civ. Proc., § 1849; Evid. Code, § 1225; Altvater v. Breckenridge (1959) 174 Cal.App.2d 790, 797 [345 P.2d 358] ; and Witkin, Cal. Evidence (1958) § 234, p. 265.) Any testimony of Landier in the prior action was given not only at a time subsequent to the alleged agreement to convey to Rose, but also after the Districts had filed an abstract of their judgment. Declarations made at that time may be of questionable competency. (See Evid. Code, § 1225, Comment.) The evidence of other witnesses either as to the declarations or statements of Landier, or as to another matter, could not bind the Districts in this action. They have failed, however, to point out in what particulars such evidence differed from that in this action, and in the absence of such specification no prejudice will be assumed.

Although no prejudicial error is found in the admission of the foregoing evidence, the probative effect given to it by the court is also questioned, and is hereinafter reviewed.

Rulings excluding evidence

The Districts complain generally that the trial court unduly restricted their examination of Landier’s former attorney by asserting a privilege on behalf of Landier who although a cross-defendant was not present at the trial in person or by an attorney.

“An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; . . (Code Civ. Proc., § 1881, subd. 2; and see Evid. Code, § 954.) Generally the lawyer should claim the privilege on behalf of his client unless he has been otherwise instructed (see Evid. Code, §§ 954, subd. (e) and 955 and Comment; and Bus. & Prof. Code, § 6068, subd. (e)). Where the attorney fails to assert the privilege when he should, the judge may exclude information that is subject to a claim of privilege on his own motion (see Evid. Code, § 916 and Comment) .

On the other hand, a privilege may be waived by failure to assert it (Lissak v. Crocker Estate Co. (1897) 119 Cal. 442, 445-446 [51 P. 688]; and see Evid. Code, § 912, subd. (a) and Comment). Moreover, where the client has testified to the substance of the conversations in the same or another action the attorney may be examined on the subject. (Agnew v. Superior Court (1958) 156 Cal.App.2d 838, 840-841 [320 P.2d 158].) Finally, it is noted that no privilege can be asserted where the client seeks advice which will serve him in the commission of a fraud. (Agnew v. Superior Court, supra, 156 Cal.App.2d 838, 840 and authorities cited; see Evid. Code, § 956 and Comment; but cf. Nowell v. Superior Court (1963) 223 Cal.App.2d 652, 657-658 [36 Cal.Rptr. 21].)

It is unnecessary to determine whether the privilege was waived by the failure of cross-defendant Landier to appear and claim it, whether it was waived by his testimony in either the current or the prior action, or whether an alleged conveyance in fraud of creditors is a fraud within the exception noted above. The Districts have failed, except in two instances, to show by offer of proof or otherwise what evidence might have been elicited which was not in fact produced from the lengthy examination and cross-examination of the former attorney.

The two instances consist of documentary evidence which was marked for identification only. Although they were not brought up with the record on appeal, the reporter’s transcript reflects that the first was a telegram from Landier advising the attorney that he and Stearns were coming to Ukiah to confer with the attorney about the ranch. The second was a letter written by Landier to the attorney after arrangements were made to dismiss the appeal in which he advised the attorney it would be unnecessary for him to ascertain the details of the arrangement between Stearns and Rose as Landier had previously requested him to do. Both were excluded as privileged communications.

The substance of these communications was elicited from the attorney. In fact a copy of a letter allegedly prepared by Landier for transmission to the attorney was introduced by Stearns. Although it was not shown to have been mailed or received it tallies generally with the description of the rejected epistle.

Under these circumstances there has been no showing of prejudice by the rulings of the trial court. “It is contended that error was committed in excusing the witness Kempt, an attorney at law, from testifying upon the ground that the matters sought to be elicited were privileged as being confidential communications from a client. We agree with appellant that the protection of privilege should not have been granted as to the particular testimony involved, because it appears that the communication to the attorney in this instance was not intended to be confidential and therefore could not be withheld upon the ground of privilege. (Sharon v. Sharon, 79 Cal. 633 [22 P. 26, 131].) But even if erroneous, the ruling was harmless, because the same matters were otherwise elicited. It is apparent that appellant suffered no prejudice and that the rulings complained of resulted in no miscarriage of justice.” (Berkowitz v. Tyderko, Ltd. (1936) 13 Cal.App.2d 561, 564-565 [57 P.2d 173]; accord: People v. Drake (1957) 151 Cal.App.2d 28, 44 [310 P.2d 997]; Costa v. Regents of University of California (1953) 116 Cal.App.2d 445, 462 [254 P.2d 85]; Pecarovich v. Becker (1952) 113 Cal.App.2d 309, 314 [248 P.2d 123] ; Lopez v. Wisler (1943) 58 Cal.App.2d 455, 463 [136 P.2d 816].)

Failure to submit the case against Rose to the jury

The first cause of action in the amended cross-complaint put in issue the validity of the negotiations between Rose and Landier prior to their separation and the effect of the subsequent judgment. By the pretrial order it was determined that the issues of fraud would be submitted to a jury for an advisory verdict. The Districts submitted four questions for determination on this phase of the case. These interrogatories, and others tentatively proposed by the court and counsel for Stearns, were discussed at length. Before oral argument the court concluded as follows: “It is the opinion of the Court that if the first cause of action merely involved the question of alleged fraud between Rose Landier and Felieien Landier, that a nonsuit would have been granted. And for that reason I do not propose to submit any interrogatories on that subject. The only issue as far as the first cause of action deals with the question of transactions or transfer in fraud of creditors; that no interrogatories have been proposed which seem to the Court to present pertinent factual matters to the Jury on that issue. And, therefore, no interrog