Iburg v. Fitch

Morrison, C. J.: On the 12th day of December, 1877, the plaintiff brought an action against the defendants in the late County Court of the city and county of San Francisco, for the recovery of the possession of a certain lot or parcel of land situate m said city and county, and for damages against the defendant Fitch for the unlawful detention thereof. The complaint shows, that the premises in controversy were leased by the plaintiff to the defendant Fitch, and that the other defendants were in possession of the premises, holding the same as sub-tenants of Fitch. The case was tried by the Court, and comes up before us for review on the findings alone.

By the first finding, it appears that the premises were leased by the plaintiff to the defendant Fitch on the 1st day of November, 1875, for the term of five years, at the monthly rent of $650, which term had not expired at the time the action was commenced. It appears from the fifth finding, that the rent was not paid according to the terms of the lease, and that the lessor had instituted several actions in the District Courts, and one in a Justice’s Court, for the recovery thereof, which actions were still pending when this action was brought. From the ninth finding, it appears that on the 12th day of December, 1877, the plaintiff commenced this action against Fitch and his subtenants, and such proceedings were had therein, that, on the 18th day of that month, the plaintiff recovered a judgment against all the defendants, except Fitch, for restitution only of the demised premises, and that on the same day the plaintiff was put in possession of the premises, under an execution duly issued upon such judgment, and has ever since remained in the possession thereof.

The defendant Fitch left the State of California for the State [191]of Nevada, on or about the 1st day of April, 1877, and was absent from this State at the time the judgment for restitution was entered against his sub-tenants. Fitch returned to this State about the middle of the following year, and on July 13th, 1878, filed his answer to the complaint. The cause was duly tried, as to the defendant Fitch, by the County Court, and judgment was rendered against him on the 11th day of March, 1879, for a forfeiture of the lease and for the sum of $12,150, the same being treble the amount of damages found by the Court.

This is a proceeding under § if 74 of the Code of Civil Procedure, and it is claimed, on behalf of the appellant, that when judgment for restitution was rendered against the defendants who were sub-tenants, and writ of possession thereupon was executed in December, 1877, it was not within the power and jurisdiction of the County Court to proceed with the trial of the case against the other defendant, Fitch, for damages in March, 1879.