Lacrabere v. Wise

LORIGAN, J.

This is an appeal hy defendants from an order denying their motion for a new trial.

The action is for unlawful detainer, and the points made hy appellants here are, that the evidence was insufficient to sustain any of the findings, and that the court erred in denying their motion for a nonsuit.

The complaint was in the form usual in such actions, alleging lease of the premises in controversy to defendants at a specified monthly rental, a failure to make payment of the rents for several months, the service of a three days’ notice to make such payment, or deliver possession of the premises, and the failure of defendants to do either.

The answer puts squarely in issue every allegation in the complaint.

Upon the trial, counsel for plaintiff, to prove the allegation in the complaint of service of three days’ notice, offered in evidence a paper purporting to he such notice, having attached to it affidavits of several persons tending to show service hy them, upon the defendants, of the proffered paper.

Over the objection, and under the exception of defendants, this notice, with the accompanying affidavits as sufficient proof thereof, was admitted in evidence. This was all the evidence offered to prove such service.

At the close of plaintiff’s case, defendant moved for a non-suit, urging, among other grounds therefor, specially the one

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that there was no proof of service of such notice. The motion was denied.

We are satisfied it should have been granted. It is an essential prerequisite to the maintenance of an action for unlawful detainer, under section 1161 of the Code of Civil Procedure, that a three days’ notice, demanding payment of the rent due, or possession of the leased premises, should be served upon the defendants, as subdivision 2 of that section requires. It is equally essential to allege the service of such demand in the complaint, and, if controverted, prove it on the trial. Service is an act to be performed before suit, a fact to be alleged in bringing suit, and a fact to be proven to successfully maintain it, and such fact is to be proven as any other disputed fact in the case. The rule is, that the best evidence must be produced which the nature of the transaction will permit; the testimony of witnesses given in open court where the adverse party may have an opportunity of cross-examination. Affidavits are not in the nature of the best evidence by which to prove issuable facts. They rank on no higher plane for that purpose than hearsay evidence.