Ladd v. Stevenson
Before: Bennett, Hastings, Lyons
Synopsis
On the 8th day of February, 1850, fm. Ladd, the plaintiff, filed his complaint before Win. B. Almond, judge of First Instance in and for the district of San Francisco, alleging that on the 4th day of February, 1850, he was in the quiet and peaceable possession of certain premises in the city of San Francisco, and that on that day the defendants Stevenson & Parker made application to John W. Geary, First Alcalde of the Jurisdiction of San Francisco, for an order to remove the plaintiff from the premises. The complaint further alleges, that under and by reason of an illegal writ, issued by the alcalde, on an illegal order made by him on such application, one Towns, the bailiff of the alcalde, forcibly dispossessed the plaintiff of the premises, and delivered the possession thereof to Stevenson & Parker. The plaintiff also alleges that he never had any notice, direct or indirect, verbal or written, of the application for the said order, or the issuing thereof, until the same was executed. The prayer of the complaint is, that the order of the alcalde may be set aside, and that the plaintiff may be restored to the possession, and may recover damages for the forcible and illegal entry of the defendants. A copy of the writ issued by the alcalde was annexed to the complaint.
The defendants, Stevenson & Parker, put in their answer, the only material part of which, (if, indeed, any portion of it can he said to be material,).is verbatim as follows : “ And for “ answer, these defendants say that the -writ set forth in the “ said petition and copy thereof annexed to same, was issued “ at the application of these respondents, and the facts stated to “ have been ascertained by the said alcalde were and are true. “ These respondents represent that as partners they are the legal “ owners of the real estate set forth and described in said peti- “ tion, and that they were in the quiet and peaceable possession “ of the same until the said Ladd, with force and violence, attempted to take possession thereof; that before he entered ££ on said real estate, which he did as a trespasser, the agent of “ respondents requested and forbid him doing so, and repre- “ sen ted to him that the property belonged to your respondents, “ and was iii their possession and under his control, for in that “ notwithstanding he entered with his house, and commenced “ building, and placed some lumber upon the same, which, in “pursuance of the alcalde, was removed therefrom without any “injury thereto. Having fully answered, pray the court to dis- “ miss said petition.”
To this answer the plaintiff put in exceptions in the civil law mode of proceeding, on the ground that the answer did not except to, nor in anywise contest, the allegations in the petition; that the order of the alcalde was void for want of jurisdiction, and that the plaintiff had no citation or notice to appear before the alcalde, but that the answer relied solely upon matter, which was wholly irrelevant.
Opinion — Lyons
By the Court,
Lyons, J. This is an action instituted by plain[20]tiff to recover possession of certain lots of land, from the quiet and peaceable possession of which, it is alleged, he was ousted by the defendants, acting under and by authority of an order issued by the First Alcalde.
The petition alleges that on and before the fourth day of February, plaintiff was in lawful, quiet and peaceable possession of the lots described, and that on said day defendants and others, claiming to act under an order of the first alcalde, entered forcibly on the premises and ousted him from such possession; and he prays to be reinstated therein.
The answer sets up, that defendants were and are the legal owners of said lots, and that previous to the entering of plaintiff thereon, which he did with force and violence, they were themselves in possession. Plaintiff filed In the court below exceptions to the answer, in the nature of a demurrer, on the ground that it neither denied, nor confessed and avoided, any of the material allegations of the petition. The court overruled the exceptions, and rendered j udgment in favor of defendants ; from which ruling and judgment plaintiff appeals.
The answer certainly does not take issue upon any of the material allegations in the complaint, neither does it admit the allegations to be true, and seek to avoid them by new matter set up in avoidance, one of which should have been done. It attempts to change the whole nature of the investigation by tendering a new and distinct issue, and making the material question to he tried, not whether Ladd, at the time he charges, was in the quiet and peaceable possession of the premises, and was ousted by Stevenson & Parker, under the illegal order of the alcalde, but whether Stevenson & Parker were at some previous time in possession, of which they were illegally deprived by Ladd. This is clearly not the issue that should have been presented. If the defendants, being in quiet possession, were deprived of it by Ladd, as alleged, a court of competent jurisdiction would have afforded the means of redress ; of this they seem to have been aware, but mistook the proper court. The alcalde, at whose hands this redress was sought, has, alone, no judicial power whatever. (Feb. Mej. art. 35, fol. 371, §35; [21]
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