Barrow v. Simon

SCHAUER, J.,

pro tem.

By this action for alleged unlawful detainer plaintiffs seek to recover possession of certain real property described in the pleadings, together with asserted unpaid accrued rental. The complaint alleges ownership of the property by thq plaintiffs, the execution of a lease thereon with certain defendants, default in the payment of rent, the giving of the twenty-day notice required by the lease, the statutory notice, and that “said defendants unlawfully hold over and continue in possession of said premises”.

Judgment was rendered in favor of all defendants, and plaintiffs appeal therefrom, asserting insufficiency of the evidence to support certain findings of fact, as well as various alleged errors of law.

The trial court made no finding upon the issue raised by the allegation of nonpayment of accrued rent and the denial thereof, but predicates its judgment upon certain alleged affirmative defenses set forth in the answer of defendant M. P. Simon, upon which it made findings of fact in effect as follows:

(1) That the last-named defendant “has neither been in actual or constructive possession of any portion” of the demised premises since February 5, 1930, a date prior to the commencement of the present action;

(2) That the issues as to “liability for money claimed against the defendant M. P. Simon” were adjudicated in a prior action between the same parties; and

[503]

(3) That prior to the filing of the complaint a receiver was appointed for the defendant Richfield Oil Company, and that such receiver was not made a party defendant.

It appears that the lease was executed in the year 1923 by and between plaintiffs as lessors and defendants M. P. Simon, F. C. Williams and W. W. Newsum as colessees; it was to run for a term of approximately twenty years and required monthly rental payments. In 1928 the lessees mentioned, together with the Richfield Oil Company of California, a corporation, executed a document denominated by them a “sub-lease” whereby such original lessees purported to “lease” to the oil company a portion of the premises described in the original lease for the full remainder of the term thereof.