Rutledge v. Barger

PINCH, P. J.

— This is an action of forcible entry upon real property consisting of a lot and a store building thereon. Judgment was entered in favor of plaintiffs for restoration of possession and for damages. The defendants have appealed from the judgment.

The evidence shows and the court found that in December, 1923, the defendants, as owners, leased the property to W. P. Rutledge and James Tully (plaintiffs herein) and William Pehr and C. C. Thomson, for a term of three years; that the lessees went into possession under the lease and conducted a grocery and general merchandise business in the building; that in December, 1925-, Pehr and Thomson transferred their interest in the property and business to the plaintiffs; that the plaintiffs “ever since said transfer have held said premises and paid to the defendants, and said defendants with knowledge of said transfer accepted, all rentals due and payable under said lease; and said plaintiffs up to the 18th day of June, 1926, have held and occupied the said store and premises as tenants pursuant to the terms of said written lease; that on or about the 18th day of June, 1926, during the temporary absence of plaintiffs from said store building, the said defendants did wrongfully, unlawfully, forcibly, and without right and by force and violence break open the doors of said store building and tear off the lock on said doors and by forcible means and methods entered upon said real property then in the actual undisturbed and peaceable possession of plaintiffs, and did oust and eject plaintiffs from possession thereof”; that the “defendants removed from said store building all the goods, wares and merchandise therein contained belonging to plaintiffs and deposited them in the rear of the adjoining premises”; that by reason of the acts of defendants the plaintiffs have been damaged in the sum of $314.72.

Appellants contend that the court erred “in overruling defendants’ demurrer to the complaint, ... in denying defendants’ motion for a nonsuit, ... in reopening the case

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on the unsupported motion of the plaintiffs, ... in denying defendants’ motion for a new trial.”

In support of the first ground it is urged that the “complaint attempts to set up a cause of action for forcible entry and unlawful detainer, under the provisions of subdivision 2 of section 1160 of the Code of Civil Procedure” and that it does not allege that the plaintiffs demanded a surrender of the premises before the action was commenced. It is clear that the action is one of forcible entry, defined by section 1159 of the Code of Civil Procedure. No notice or demand was necessary. (11 R. C. L. 1169.) It is contended that there was no show of force, threat, or intimidation alleged. It is alleged and the uncontradicted testimony shows that the defendants broke the lock in order to enter the building. This was sufficient to constitute a forcible entry.