Waters v. Dumas

Searls, C. J. This is an action to recover damages for a trespass upon real property.

Plaintiff had a verdict for $301, for which sum, together with costs, judgment was rendered in her favor.

The appeal is from the final judgment, and from an order denying a new trial.

The complaint avers in substance that plaintiff was a resident and occupant of the house No. 50 Stevenson Street, San Francisco (describing it); that on or about the thirteenth day of February, 1884, the defendants wrongfully and maliciously took down, removed, and carried away the front door of said house; took out and carried away the windows therefrom; stopped and stuffed the flues of the chimney so as to prevent the escape of smoke through the same; that the weather was wet, cold, and stormy, and that when plaintiff had tacked cloth to the windows to keep out the cold, defendants tore down the same, threatened and reviled her, struck her with a board or piece of stick; that by reason thereof, and by reason of the cold and the open windows, etc., plaintiff suffered severely, both mentally and physically, to the extent of one thousand dollars.

Defendant demurred to the complaint, and urges that as Emilie Dumas, one of the defendants, was the wife of [565]Lucien Dumas, her co-defendant, and as no reasons are given for joining her as a defendant, the demurrer should have been sustained.

The answer to the proposition is, that there is not a word in the complaint either showing or tending to show that the parties defendant are husband and wife. They are declared against as joint trespassers, and the allegations are amply sufficient to render them liable as such.

The motion to set aside the verdict because judgment was not entered thereon within twenty-four hours after its rendition was properly denied.

It is true, section 664 of the Code of Civil Procedure requires judgment to be entered by the clerk in conformity with the verdict within twenty-four hours after its rendition, unless the cause is reserved for argument or consideration, or a stay of proceedings is granted.

The court does not, however, lose jurisdiction of the cause by a failure to enter the judgment within the time prescribed, or by failure of the clerk to perform his duty.