Montijo v. Robert Sherer & Co.

[559]

TAGGART, J.

An action of forcible entry. Plaintiffs allege ownership and actual possession of lots designated as 44, 45, 46, 47 and 48 of a certain subdivision in the city of Los Angeles, and the forcible entry of defendants upon lots 44 and 45 at divers times on February 2, 1906, and at other times between that date and February 14, 1906; and that defendants blasted and tore up and carried away large portions of the soil of said lots. The prayer of the complaint is for damages only.

Judgment was for defendants, and plaintiffs appeal from the judgment and from an order denying their motion for a new trial.

It is stated in appellants’ brief that they made a motion to strike out the answer and moved for a judgment on the pleadings on the ground that the answer did not state facts sufficient to constitute a defense, but that the court denied both motions. The question is presented in the argument, although it appears from the brief that the court refused to admit a record of these motions into the statement. No bill of exceptions on this ruling appears in the transcript, and in the absence of any showing we are bound to assume that the reasons of the trial court for refusing to embody these matters in the “statement” were valid and sufficient.

The grounds of the motion for a new trial, as stated in the notice, are: Insufficiency of the evidence to justify the decision of the court; and that the decision of the court is against law. The specifications of error in the statement on motion for a new trial do not cover the latter ground, but specify an error of law occurring during the trial by a ruling of the court striking out a statement made by the plaintiff Manuel Montijo when a witness on the stand. The particular in which the evidence is claimed to be insufficient to support the decision of the court is addressed to the finding that the plaintiffs were never in either actual or constructive possession of the property forcibly entered.

The testimony of plaintiff Montijo failed entirely to connect the property on which he said the defendants entered with that described in the complaint. The only deduction the court was able to make, as stated by it, was that “the' blasting was fifty feet away from his house and at the end of the hill. ’ ’ Thereupon, by consent of the parties, the court visited the premises, and upon returning into court the judge