I dissent. The judgment of the majority assumes to expunge from the findings and judgment those portions thereof which find and adjudge the defendant Jefferson K. Stickney, Jr., guilty of fraudulent conduct. No finding is made by this court contrary to the findings of the trial court and I question the authority of this court to make such an order of expurgation. I agree that the record is insufficient to support the findings of fraud. The question before this court in that behalf is whether such findings are supported by the evidence. Since the findings are unsupported, the appropriate order is to reverse the judgment or to make findings contrary to the findings of the trial court and, if there be no other infirmity in the findings or judgment, to affirm the judgment on the findings so made.
In my opinion the allegations of the complaint were sufficient to place the defendant, Stickney, Jr., on notice that he was charged with fraudulent practices in the trust deed sale. *Page 656 He was ready and anxious to meet those charges at the trial, and was justified in assuming that the case would not be brought on for trial during the few days of his absence from the city of San Diego. The showing made on his motion to reopen the cause to permit him to rebut, by material evidence, the inferences of fraud developed at the trial in his absence, was sufficient to support the motion and the trial court should have granted it. The failure to do so alone would require a reversal.
Again, the judgment of the majority affirms that portion of the judgment which quiets the plaintiff's title to the property, when it is conclusively shown that the plaintiff is not, and was not at the time of the trial, the owner of the property in controversy. At all events I think the judgment should be reversed, probably with directions to enter a judgment for the defendants.