McMinn v. Bliss

By the Court, Shafter, J.: This is an action of forcible entry and detainer. The case passed from the Justice’s Court to the County Court on appeal taken by defendants on the 31st of December, 1863. At the January term of the County Court, 1864, the defendants moved to dismiss the action on the ground that the statutes under which it was brought had been repealed. The motion was denied. The case was tried at the September term, 1864, and comes here on the appeal of the defendants from the judgment and the order overruling their motion for a new trial.

The Act of April 27th, 1863, (Acts 1863, p. 655, Secs. 15, 16,) repealed all Acts previously passed relating to forcible entries and unlawful detainers, the repeal to take effect on the 1st day of January, 1864. The right of the plaintiff to the summary remedy of forcible entry and detainer, being of statute origin, would have terminated on the 1st day of January, 1864, had not the Legislature repealed the repealing clause, so far as pending cases were concerned, by the Transfer Act of December 23d, 3 863. (Acts 1863-4, p. 1.) This Act and the Act of April 27tb, 1863, both took effect at the same time—January 1st, 1864—and are clearly in pari materia. The provisions of the Transfer Act are, in our judgment, wholly irreconcilable with the idea that the Legislature conserved judicial, cognizance over the cases referred to for no other purpose than that they might be formally dismissed on motion. The provision is that the cases “ shall be tried and determined” in the County Courts the same as though they had been brought there in the first instance.. So far, the case is with the plaintiff.

The first count of the complaint charges “ a forcible entry with a multitude of people,” and a “ forcible and unlawful detainer.” In a complaint so framed, the forcible entry is the gist of the action, the averment of forcible detainer not being stated as an independent ground of relief, but as a mere continuation or consequence of the first act. (Preston v. Kehoe, 15 Cal. 318; Thompson v. Smith, 28 Cal. 532.) There was [127]no evidence in the case tending to prove a forcible entry, that is, an entry with strong hand with unusual weapons, or with menace of life or limb. (Polack v. McGrath, 25 Cal. 58.) The second count charges an unlawful entry and forcible detainer, but there is no evidence in the record tending to prove a forcible detainer within the rule settled in the case last referred to. There was here no actual exhibition of force when the plaintiff’s agent went to the land for the purpose of re-entering upon it, nor was there any evidence either of present ability or disposition to use it. The defendant Cough uttered no menace, but, in answer to a question, suggested what Bliss and O’Connell would do if a re-entry should be attempted. The interview seems to have been conducted in an amicable spirit, and ended in a formal adjournment to the next day, and to a place three fourths of a mile from the lot in controversy, for the purpose of seeing Bliss and O’Connell “as to what was to be done.” It appears that the parties met in pursuance of this adjournment, and that Bliss being interrogated upon the point, “ answered and said that he and O’Connell intended to keep and maintain possession of the premises by force, and at all hazards.” It appears that Loyd, at whose office this parley took place, “ then stepped forward and remarked that Bliss and O’Connell intended to maintain their possession until they were put out by lawto which remark Bliss made no reply. This interview was by convention—it was not on the land, but remote from it—it was, apparently, diplomatic in conception, and the dialogue between'the parties seems to have been diplomatically conducted. Each party manoeuvred for a position. We consider the case of Polack v. McGrath et al. stronger on the facts than this.