Schilling v. Holmes

Crocker, J. delivered the opinion of the Court—Nortoh, J. concurring.

The complaint in this case avers that, on the first day of May, 1861, the plaintiff, being the owner of a certain building in the City of San Francisco, leased the lower story of the same to the defendant Becker, for one month,, for the monthly rent of seventy-five dollars; that Becker underlet portions thereof to Holmes and the other defendants; that Becker paid the rent up to September 1st; that on the first day of August, the plaintiff served on Becker a written notice, to quit and sui’render the premises, on the first day of September, 1861; that a similar notice was also served on Becker, September 3d, requiring him to immediately surrender the possession; that on the fourth day of September, Becker removed from the premises, and left the other defendants in possession; and the latter have been in possession.ever since; and that on the seventeenth day of September, he served a written.notice on said other defendants, requiring them to quit and surrender the premises to him. He prays to be restored to the possession, and for damages and costs. The action was commenced before a Justice of the Peace, on the twenty-first day of September. The case was twice transferred, on the application of the defendants, from one Justice’s Court to another; and on the ninth day of Octobér, the plaintiff recovered judgment against the defendants Holmes and Kent, from which they appealed to the County Court. The Justice dismissed the action as against Becker, and all the other defendants except Holmes and Kent.

In the County Court, a jury was waived, and the case was tried [229]by the Court, who filed its findings of facts, and rendered judgment in favor of the plaintiff, and against the defendant Holmes, on the sixth day of October, 1862, for the possession of the premises, and one hundred and fifty dollars—trebled damages, for rents and costs. From this judgment both parties have appealed to this Court.

The Court below found that on the nineteenth day of September, 1861, Kent removed from the premises, leaving Holmes in the possession of the whole; that Holmes continued in possession until October 11th, when he was forcibly ejected therefrom by one Horber ; that on the same day he commenced an action of forcible entry against Horber and the plaintiff in this action, Schilling, and on the nineteenth of October, recovered judgment therein against Horber and Schilling; that an appeal was taken from that judgment to the County Court, where Holmes recovered judgment against Horber for the restitution of the premises, and for treble the value of one and one-third month’s rent, at seventy-five dollars per month, and Schilling recovered judgment therein against Holmes; that Horber was the agent of Schilling at the time of said forcible entry, “ for the purpose of letting the said premises and collecting the rents thereof; and had general supervision of the premises.” As a conclusion of law, the Court found that the plaintiff was entitled to the restitution of the premises, and the value of two-thirds of a month’s rent, at seventy-five dollars per month.