Polack v. Shafer

California Supreme Court Jul 1, 1873 No. No. 3,642Published

Before: Niles

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Holding. The court held that the trial court properly granted a nonsuit due to a lack of evidence of forcible entry or detainer, and correctly denied the filing of an amended complaint due to a misjoinder of inconsistent causes of action.

Issues

Whether the trial court erred in granting a writ of restitution to defendants following the reversal of a prior judgment.
Whether the trial court erred in refusing to allow the filing of an amended complaint containing misjoined causes of action.
Whether the evidence supported a claim of forcible entry or detainer under the Act of 1866.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Upon a reversal of a judgment in the appellate Court it is right that the appellant be placed as nearly as may be, without interfering with the acquired rights of third parties, in the same position which he occupied”

“There was an evident misjoinder of causes of action.”

Synopsis

Writ of Restitution in Forcible Entry.—If a plaintiff, in forcible entry and detainer, recovers judgment, and is placed in possession of the premises by a writ of restitution, and the judgment is afterwards reversed by the Supreme Court, the Court below should restore the defendant to the possession.

Misjoinder of Causes of Action in Forcible Entry.—A count for a cause of action, under the Forcible Entry and Unlawful Detainer Act, cannot be joined in (he same action with a count for holding over as a tenant of the plaintiff, contrary to the terms of a lease.

Landlord Cannot Maintain Forcible Entry. — The landlord cannot maintain forcible entry or unlawful detainer for an entry made upon the demanded premises after his tenant has entered into possession under a lease.

Landlord Cannot Maintain Unlawful Entry.—If an unlawful entry is made upon the possession of the owner, but when ho demands a surrender, the right to the possession has passed from him to his tenant to whom he has made a lease, the landlord cannot maintain unlawful detainer.

Complaint in Forcible Entry.—The fraudulent acts which may be alleged, under the fifth section of the Forcible Entry and Unlawful Detainer Act, do not constitute a cause of action, but merely go to the enhancement of damages when a cause of action is made out under the other sections of the Act.

Covenant on Part of Lessee in a Lease.—When a lease is made of the entire premises constituting a hotel, and the land surrounding the same, and a covenant on the part of the lessee is inserted, that the lessor may retain and occupy a room in the hotel, and board there, this covenant is not a reservation of the room from the operation of the lease, and for a forcible entry into this room the lessee alone can complain.

By the Court, Niles, J.: This action was brought under the Forcible Entry and Detainer Act of 1866, to recover the possession of certain premises known as the Geyser Springs Hotel property, in the County of Sonoma. A judgment of nonsuit was rendered against the plaintiffs, and from the judgment, and from the order overruling plaintiffs’ motion for a new trial this appeal is taken.

Before considering the motion for a new trial upon the merits, we shall notice several points made by the counsel for appellants upon their appeal from the judgment.

1. Errors are claimed in the orders of the County Court granting to the defendants a writ of restitution, and refusing to set this order aside upon motion of plaintiffs.

It seems that upon a former trial of this cause the plaintiffs recovered judgment for a restitution of the premises and upon this judgment a writ of restitution was issued and executed. Upon appeal to this Court the judgment was reversed and the cause remanded, with directions to the Court [276]below to sustain defendants’ demurrer to certain counts of the complaint. Upon filing the remittitur in that Court, an order was obtained for a writ to restore the defendants to the possession of the property.

The order was one proper to be made. Upon a reversal of a judgment in the appellate Court it is right that the appellant be placed as nearly as may be, without interfering with the acquired rights of third parties, in the same position which he occupied when the erroneous judgment was rendered. (Reynolds v. Harris, 14 Cal. 679.)

This was substantially the effect of the order in question.

2. The Court did not err in refusing to allow the plaintiffs to file their proposed amended complaint. There was an evident misjoinder of causes of action. The first five counts were framed under the Act of April 2d, 1866, concerning forcible entries and unlawful detainers. The sixth was framed under the Act of April 27th, 1863, commonly known as the landlord and tenant Act, and charged an unlawful holding over by the defendants as tenants of plaintiffs, after expiration of the lease and notice to quit. Causes of action under these several Acts are distinct and different, both as regards the ground of action and the mode of procedure. Tn the one case there must be proof of the forcible taking or withholding of possession, and the force is the gist of the action. There is nothing in the nature of a contract between the parties to the proceeding. In the other the element of force is entirely wanting. The entry was lawful and the detention peaceable. The statute merely provides a summary remedy for the breach of a special class of contracts. The incompatibility of the two causes of action is obvious when we consider that a landlord who should make a forcible entry upon his own land after the expiration of his tenant’s term, and due notice to quit, would be liable to an action at the suit of the tenant under the forcible entry Act of 1866, while the same facts, without the forcible entry,

Polack v. Shafer

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