Watkins v. McCartney

California Court of Appeal Dec 6, 1924 No. Docket No. 4283.Published

Before: Conrey

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Holding. The court affirmed the judgment against defendant Dorothy A. McCartney in favor of plaintiff Watkins, but reversed the judgment against defendant E. J. McCartney and held that the demurrer should have been overruled regarding plaintiff Smithton's standing. The court also affirmed the orders denying the motion to vacate the default and the order regarding the writ of restitution.

Issues

Whether the trial court erred in sustaining a demurrer to the defendants' second amended answer in an unlawful detainer action.
Whether the judgment against E. J. McCartney and in favor of plaintiff Smithton was supported by the pleadings.
Whether the trial court abused its discretion in denying the motion to set aside the default judgment and in issuing the alias writ of restitution.

Disposition. Affirmed in part, reversed in part, and dismissed in part.

Quotations verified verbatim against the opinion

“These allegations, which on demurrer must he deemed to be true, constituted a sufficient defense on the part of E. J. McCartney.”

“The substantial truth of the matter seems to be that the plaintiff Henry Watkins, as landlord of the defendant Dorothy A. McCartney, is entitled to judgment against her for possession of the leased premises”

“The appeal from the order sustaining demurrer is dismissed.”

CONREY, P. J.

Action in unlawful detainer. The defendants filed three notices of appeal. The first (filed July 19, 1922) is an appeal from an order sustaining a demurrer to the second amended answer of the defendants. The second (filed August 1, 1922) is an appeal from the judgment entered July 20, 1922, and from an order made July 26, 1922, denying a motion cf defendants to set aside their default and to vacate the judgment. The third (filed August 23, 1922) is an appeal from an order made on the ninth day of August, 1922, recalling and setting aside an order inadvertently entered on August 8, 1922, and restoring to full force and effect an order of August 5, 1922, and directing that an

alias

writ of restitution issue forthwith.

We will first consider the appeal from the judgment. On the second day of October, 1920, the plaintiff Henry Watkins entered into a written contract of lease with the defendant Dorothy A. McCartney, renting the demised premises to Mrs. McCartney at a monthly rental of thirty-five dollars per month, “until a

bona fide

sale is made, sixty days’ notice.” Thereafter the plaintiff attempted to terminate the lease by means of a notice (of less than sixty days) to the lessee to quit and vacate the premises. This was not a notice based upon failure to pay rent. This was followed by an action in unlawful detainer which was determined in the superior court in favor of the plaintiff. Thereafter on May 10, 1922,

[140]

on appeal of the defendants, that judgment was reversed.

(Watkins

McCartney,

57 Cal. App. 643 [207 Pac. 909].) A petition of appellants, for a hearing and determination of the cause by the supreme court, Was denied on July 6, 1922.

On June 2, 1922, the plaintiffs commenced the present action in unlawful detainer, based upon the fact that they had leased said premises to the defendants, and alleging nonpayment of rent for the several months, including and following March 1, 1921, down to and including the month of May, 1922, and a three days’ notice to pay the rent or surrender possession of the property. In this action the defendants, on July 12, 1922, filed a second amended answer. On July 18, 1922, a demurrer of the plaintiffs to said second amended answer was sustained without leave to amend the answer. On the following day, judgment was entered in favor of the plaintiffs.

Watkins v. McCartney

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CONREY, P. J.

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