Edwards v. Bodkin

' CONRET, P. J.

The complaint stated a cause of action in forcible detainer. The trial court in its decision of the case found that on or about December 17, 1912, the defendant unlawfully

and, forcibly

entered upon the described premises. The complaint alleged an unlawful entry during the absence of the plaintiff, but did not allege a forcible entry. The

[406]

complaint also alleged, and the court found it to he a fact, that on said seventeenth day of December the plaintiff made demand in writing upon the defendant to deliver to the plaintiff the possession of said premises, and that the defendant refused for a period of five days thereafter to surrender possession thereof to the plaintiff; the court did not find that the entry was made during the absence of the plaintiff, but that fact was not denied.

Forcible entry is defined as follows (Code Civ. Proc., sec. 1159): “Every person is guilty of a forcible entry who either—

“1. By . . . any kind of violence or circumstance of terror enters upon or into any real property; or,

“2. "Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.”

[1]

There is no evidence to show that defendant’s entry upon the premises on the seventeenth day of December, 1912, was accompanied by any kind of violence or circumstance of terror, or that the defendant turned out by force, threats, or menacing conduct the party in possession. It follows that there was no forcible entry.

At the trial evidence was produced showing that the defendant had also entered upon the land on the twenty-third day of November, 1912, and remained there for a few hours. The evidence does not show where the plaintiff was at the time of such entry, but it does show that a short time thereafter, and on the same day, the plaintiff appeared on the premises accompanied by a constable, by whom the defendant was arrested. Defendant’s occupancy at that time continued for only a few hours, and he did not enter again until the seventeenth day of December following. "We have carefully examined the evidence showing the circumstances of said entry of November 23, 1912, and we are satisfied that it is not sufficient to support the claim of forcible entry at that time.