Valencia v. Couch

California Supreme Court Jul 1, 1867Published

Before: Sanderson

AI Brief

AI-generated · verify before citing

Holding. The court held that the plaintiffs established a prima facie case of forcible entry, as the defendant's actions constituted an unlawful ouster through the use of force, and therefore the trial court erred in granting a nonsuit.

Issues

Whether the trial court erred in denying the plaintiffs' motion to amend their complaint to state causes of action in separate counts.
Whether the trial court erred in granting the defendant's motion for a nonsuit.
Whether the plaintiffs' evidence was sufficient to establish a prima facie case of forcible entry under the statute.

Disposition. reversed

Quotations verified verbatim against the opinion

“We are of the opinion, however, that the plaintiffs’ testimony made a prima facie case of forcible entry and that the Court erred in granting a nonsuit.”

“Two hostile parties cannot be in possession of the same premises at the same time, and the possession is not changed until the invaders have expelled the former occupants.”

Synopsis

Complaint in Forcible Entry and Detainer. — Forcible entry and forcible detainer are separate causes of action, and ought to be separately stated in different counts in the complaint. If not so stated in the complaint it is bad on demurrer, but if the complaint is not demurred to the objection is waived.

Pleadings in Forcible Entry and Detainer.—The offenses mentioned in the Forcible Entry and Detainer Act should be separately stated in the complaint,• and fraud, if relied on, should also be separately stated.

Amendment to Complaint.—If the plaintiff sues upon one only or upon two of the causes of action mentioned in the Forcible Entry and Detainer Act, and the testimony makes a cause of action named in the Act, but not set out in the complaint, it is the duty of the Court on its own motion, or on the motion of the plaintiff, to permit him to amend his complaint to suit the testimony. Amendments to Pleadings.—A motion to amend a complaint does not come too late because made after the plaintiff has closed his testimony and the defendant has moved for a nonsuit. A motion to amend is always in time when it immediately follows an objection to the complaint or answer.

Possession of Lot.—A person has possession of a lot twenty-eight feet by one hundred and thirty-two sufficient to enable him to maintain forcible entry and detainer, if it adjoins a lot on which he lives, and has a stable on it, and he cultivates it, even though the fence inclosing the whole is not very substantial.

Entry upon Another's Possession.—One entering upon a lot in the possession of another does not effect a complete entry and acquire possession until he has expelled the party in possession and effected an exclusive lodgment.

Forcible Entry.—For the purpose of determining whether an entry is forcible, all that transpires between the parties from the time of the coming of one until the going out of the other is to be taken into account.

What constitutes Forcible Entry.—One who goes to a lot in another’s possession, accompanied by several men, and builds a fence around it, while the former possessor is remonstrating, and removes him from the line of the fence where he places himself to prevent the fence from being built, is guilty of a forcible entry.

By the Court, Sanderson, J.: This action was brought to recover possession of a lot, thirty-eight by one hundred and thirty-two feet, in the City of San Francisco, under the provisions of the Act of the 2d of April, 1866, in relation to forcible entries and unlawful detainers. (Statutes 1865-6, p. 768.) The case was tried by the Court without a j ury. At the close of the testimony on the part of the plaintiffs, the defendant moved for judgment of nonsuit. Thereupon the plaintiffs moved for leave to amend their complaint by adding thereto a further or distinct cause of action for a detainer’. The latter motion was denied and the former granted. The plaintiffs then moved for a new trial upon a statement first prepared and settled for that purpose. This motion was denied, and plaintiffs have brought the case here by an appeal taken from the order denying a new trial.

On the part of the appellants, it is claimed—first, that the Court erred in denying their motion for leave to amend; and second, in granting a nonsuit.

The original complaint contains but one count in which the possession of the plaintiffs is alleged—a forcible entry by the defendant, a forcible detainer, and a demand by the plaintiffs for the possession, made on the 28th of August, 1866. So far as we have been able to discover, there is no material difference between the averments of the original complaint and those contained in the proposed amendment, except as to the date of the demand, which is stated in the proposed amendment as the 28th of June, 1866; but this must be a mistake, for the entry is alleged to have taken place on the 9th of July, subsequent to the alleged demand, and the notice or demand, which was in writing and is in the record which has been brought up, bears date on the 25th of August, 1866; besides, Cardinell, who served the notice on the defendant, testified that he served it on the 28th of August, 1866. The only object therefore which counsel seems to have had in asking for leave to amend was to state the entry and the detainer in separate counts, as distinct and separate causes of [342]action, and also to make the complaint conform to every possible aspect of the testimony. We are asked whether, if, in an action of this'character, the plaintiff relies upon a forcible entry and also upon a forcible detainer, it is necessary for him to allege them in separate counts, or whether it would be sufficient to allege both in one count in the manner in which they are alleged in the original complaint in this case; and, if it is necessary to state them in separate counts, we are further asked if the plaintiff is not entitled to amend, as a matter of absolute right, under the tenth section of the Act in question, where he has not stated them separately, or where he has failed to state them both, and the testimony shows a right to recover upon the one not stated.

Valencia v. Couch

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief