Treat v. Forsyth

Appeal from the County Court of the City and County of San Francisco. >

This is an 'action for forcible entry and detainer under the statute of 1866.

Judgment was rendered for tbe plaintiff for restitution of the premises, and defendant moved for a new .trial; tbe motion was denied, and defendant appealed from tbe judgment and from tbe order denying tbe motion for new trial.

Tbe defendant cited tbe following grounds of error in tbe motion for a new trial, and upon appeal after tbe motion was denied;

First — Errors of law occurring at tbe trial and excepted to by defendant’s counsel, to wit: tbe admission in evidence of tbe judgment roll in tbe District Court of tbe 12tb Judicial District, No. 41,208, and tbe writ of restitution.

Second — Insufficiency of tbe evidence to justify tbe findings or judgment of tbe Court, and that tbe same are against law in tbis.

First — That tbe-evidence fails to show any possession or right of, in or on tbe part of tbe plaintiff at tbe commencement of tbis suit, or more than one year prior thereto.

Second — That tbe evidence fails to show any forcible or unlawful entry on tbe part of tbe defendants; on tbe contrary, tbe evidence shows tbe entry to have been peaceable, quiet and unobtrusive.

Third — That tbe evidence shows there was no forcible or unlawful bolding of tbe premises; on tbe contrary, that tbe same was peaceable, and not held by or with force or threats of any bind.

Fourth — That tbe findings and judgment should have been for tbe defendants instead of for tbe plaintiff.

Tbe complaint in tbis action is for a forcible entry and detainer. Tbe whole case shows that there was no force in defendant’s entry. They entered quietly and peaceably; so that tbe plaintiff must support bis judgment, if be can, on tbe theory that tbe defendants, although their entrv was peaceable, committed a fwcible detainer.

But tbe plaintiff cannot recover, even if a forcible detainer be proved. Tbe complaint in tbis action consists of one count. It states that tbe defendants on tbe 10th of November, 1869, made a forcible entry into the premises, “ and bave eyer since forcibly and unlawfully detained possession of said premises from said plaintiff.” The plaintiff haying failed to proye a forcible entry, and the alleged forcible de-tainer being stated as a continuation of the original entry, the plaintiff cannot rely upon such detainer as an independent ground of recovery. Upon this point the case of {Preston v. Kekoe, 15 Cal. 315;) is conclusive. But even if the complaint be deemed sufficient to support a judgment for forcible detainer, there is no proof of forcible detainer. This Court has repeatedly held that forcible de-tainer, must be accompanied with violence, actual or threatened. {McEnvoy v. Igo, 27 Cal. 375; Valencia v. Couch, 32 Cal. 340; Thompson v. Smith, 28 Cal. 527.)