Easton v. O'Reilly

Myrick, J. This is an action of ejectment. The plaintiffs had judgment as to defendants Burr, Wortham, and H. Jones, who have appealed.

The suit was commenced January 20, 1874, against Burr and one O’Reilly, who were served and answered. March 8, 1875, the plaintiffs filed an amended complaint, naming as defendants O’Reilly, Wortham, Burr, Silva, and John Doe Jones. A second amended complaint (on which, and answers thereto, the action was tried) was filed August 29, 1878, naming as defendants O’Reilly, one Haubricht, Burr, Wortham, Silva, Henry Jones, John Doe, Peter Roe, and Richard Roe, the last three [307]being stated to be fictitious names. The defendants answered, alleging that the cause of action was barred by sections 315, 316, 318, 319, and 320 of the Code of Civil Procedure.

On the trial plaintiffs gave in evidence a patent of the State of California (swamp and overflowed lands), dated November 29, 1871, to themselves; also a certificate of purchase, dated September 9, 1859, to F. P. Tracy, together with evidence to show that they had acquired the right of F. P. Tracy under the certificate.

First. The evidence as to possession showed that O’Eeilly was not in possession when the suit was commenced, January 20, 1874. He had been in possession, and on the 10th of December, 1873, executed a deed to Burr and Northam, who have ever since claimed to own the land. From December 10, 1873 (when Burr and Northam took the deed from O’Eeilly), until about the middle of 1874, defendant Jones was in possession as tenant of Burr and Northam, at' which latter time Haubricht went in under lease from them; Haubricht was in possession at the time of filing the second amended complaint, by which he was made a party. It will thus be seen that when the suit was commenced, January 20, 1874, Burr and O’Eeilly were not proper parties defendant. O’Eeilly was made a party, but was not in possession; Jones was in possession, but was not made a party; and Burr being out of actual possession, ivas not joined with his tenant Jones.

By the first amended complaint, O’Eeilly was again erroneously made a party; and Silva, Jones, Northam, and Burr were joined with him. In the second amended complaint the error as to O’Eeilly was repeated; Haubricht (then in possession) was joined, as were his landlords Burr and Northam.

On motion of defendants’ counsel the court granted nonsuit as to defendants O’Eeilly, Haubricht, and Silva, and denied their motion for nonsuit as to Jones. The defendants then moved for nonsuit as to defendants Burr and Northam, and each of them, on the ground that it was not proven that either of them was in possession personally, or was the landlord of any defendant who was in possession at the time the action was commenced as against such defendant. As to these motions and rulings we have to say, the motion was properly granted as to