Pico v. Cuyas
Before: Cbockett, Rhodes
Synopsis
Law of a Cask.—When the Supreme Court has settled the law of a case, the Court below has no right to assume that the law is otherwise than as settled because of statements in affidavits filed in the Court below, that the party in whose favor the law was settled, claims that it is otherwise.
Unlawful Detainee.—A party cannot recover possession of premises under the Act allowing an action of unlawful detainer to be brought against a tenant holding over or failing to pay rent, unless the relation of landlord and tenant exists by convention.
Pabtnee cannot Maintain Unlawful Detainee against Copaetnee.—If the owner of a hotel leases the same, and then enters into such a partnership with the lessee, as to destroy the lease, he cannot afterwards maintain an action of unlawful detainer against his partner and former tenant.
Bevebsal of Judgment in Unlawful Detainee.—If judgment passes against the defendant in unlawful detainer, and the plaintiff is placed in possession of the premises, and the defendant appeals, and the judgment is reversed, the defendant is entitled to be restored to the possession, even if the plaintiff has rented the premises to a tenant.
Opinion
By the Court : In Pico v. Cuyas (47 Cal. 175), this Court saicl: “ We do not think that the effect of the contract proven was to change or modify the terms of the lease, or to work a surrender of it. The two contracts are entirely separate and distinct.” This was adopted as the law of the present case. (Pico v. Cuyas, 47 Cal. 180.) The Court below, therefore, was not authorized to assume that the law was otherwise, because of a statement in an affidavit that the defendant claimed that “the so-called lease was wholly suspended and set aside by the alleged contract of copartnership.” But if it could be assumed that such was the legal effect of the agreement of copartnership, the plaintiff could never recover the possession in the present form of action, because the relation of landlord and tenant did not exist by convention.
The existence of the partnership and the non-existence of the lease when the action for unlawful detainer was brought, would always constitute a defense to that action. The dissolution of the partnership would not aid the plaintiff to a recovery in the County Court. When that Court determined, on motion, that the plaintiff had a right to the possession, without reference to his asserted right under the lease, it, in effect, tried a supposed action of ejectment (in which no pleadings had been filed, and no jury was impaneled) upon ex parte affidavits.
Order reversed and cause remanded, with directions to the Court below to sustain the motion of Cuyas. Remittitur forthwith.
Dissent — Rhodescbockett
Rhodes, J. and Cbockett, J., dissenting in part: After the plaintiff had obtained judgment in the County Court, a writ was issued, and under it he' was put in possession of the premises. The judgment of the County Coxu’t having been reversed, and the cause remanded, the defendant moved the County Court that he be restored to the possession of the premises, and this motion was denied. From this order the appeal is taken.
[643]This order is not an appealable order. It is not expressly enumerated as such in the Code, and it is not a “special order made after final judgment,” for there was no final judgment when the order was made. The order may be reviewed on an appeal from the judgment.
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