Voll v. Hollis
Before: Thornton
Synopsis
New Trial—Dismissal of Motion—Order Denying Motion—Practice.— After a notice of intention to move for a new trial had been filed and a statement duly prepared and certified and filed, the Court made an order dismissing the motion for want of prosecution.
Held: The order must be considered as an order denying the motion; and the case is properly here on appeal.
Forcible Detainer—Unlawful Entry—Good Faith—Evidence.—In an action for forcible detainer, evidence is not admissible, on the part of the defendant, to show that the entry was made in good faith and under claim and color of title. Under the Code, all entries on the actual possession of another are unlawful, and the question of good or bad faith, on the part of the defendant, no longer affects the right of the recovery.
Id.—Id.—Id.—Id.—Cases Distinguished.—Thompson v. Smith, 28 Cal. 532; Shelby v. Houston, 38 Id. 422, have no application under the provisions of the Code of Civil Procedure.
Forcible Entry and Detainer—Evidence.—On the trial of an action for forcible entry and detainer, a witness for the plaintiff was asked the question: “ State if anything occurred with reference to that crowd of people there, with reference to the Mayor’s going on the ground and ordering them to stop ? ” and the Court excluded the question.
Held: The question should have been allowed. It related to the circumstances of the entry, and was asked to show that it was forcible.
Id.—Id.—The court also ruled out the following questions to a witness of the defendant: “During that time, there was a litigation pending in regard to this property between you and Mr. Voll?” “Was there not a suit brought by yourself in the Twelfth District Court to quiet title, in which you set up this very possession against Mr. Voll?”
Held: The questions were proper. They had reference to the relations between the witness and the plaintiff Voll, and were asked to show a state of feeling by witness towards Voll, as to which the questions were allowable. The Court erred in sustaining the objections.
Thornton, J.: This action is brought to recover possession of a lot in San Francisco. It was brought under the provisions of the Code of Civil Procedure contained in Chapter iv, Part III, Title III of that Code. The complaint contains two counts, one for a forcible entry and the other for a forcible detainer. The cause was tried by the Court without a jury, and judgment was rendered for defendants. The plaintiffs moved for a new trial, and on the third day of October,-1879, this motion was, on motion of defendants’ attorney, no one appearing for plaintiffs, dismissed for want of prosecution. An order was entered to that effect. An appeal is prosecuted by the plaintiffs from the judgment and “from the order refusing a new trial.”
The judgment was entered on the twentieth day of July, 1878, and the appeal from it was taken on the fifteenth of October, 1879. This appeal from the judgment having been taken more than a year after the same was entered, can not be considered, and must be dismissed. (C. C. P., § 939.)
It is argued that the motion of. a new trial having been dismissed for want of prosecution by the Court below in the exercise of a proper discretion, the appeal from it should not be considered. At the time the order was made a statement on this motion was on file, which, according to a stipulation appearing in the transcript, is correct, and was filed in time and the order should not have been made. (Warden v. Mendocino County, 32 Cal. 655; Calderwood v. Peyser, 42 id. 111, 151.) The order of the third of October, 1879, dismissing plaintiff’s motion, must be considered as denying it. Such an order was so construed in Warden v. Mendocino County, ut supra, and we shall follow the ruling in that case. The case, then, [573]is properly here on appeal from the order of the third of October, 1879, which, in effect denied the motion for a new trial.
On the argument, our attention was called to several points, but we do not consider it necessary to notice all of them.
Evidence was admitted, against the objection and exception of plaintiffs, that one Hale claimed to be owner of the land in controversy. The defendants also offered in evidence a deed from E. S. and Lamson Walden to William Hale, dated the twenty-fifth of September, 1875, for the property in controversy, and also a deed from William Hale to defendant Hollis, dated the thirty-first of July, 1876, for the same property. The plaintiffs objected to the foregoing evidence on the ground that it was immaterial, incompetent, and irrelevant. The objection was overruled, and plaintiffs excepted.
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