Chuck v. Quan Wo Chong & Co.

Paterson, J. This is an action of unlawful detainer. It is the same case as No. 13088, decision this day filed (ante, p. 592); but the appeal herein is from an order denying the defendant’s motion for a new trial, from an order made after final judgment denying the defendant’s motion to vacate and set asidethe judgment from which an appeal was taken in No. 13088, and from an order refusing defendant’s motion to strike out the plaintiff’s cost-bill.

The last two orders referred to are non-appealable. The appeal therefrom is therefore dismissed. (Eureka etc. R. R. Co. v. McGrath, 74 Cal. 49.)

It is claimed by the appellant that the complaint does not state a cause of action against the defendant, because there is no allegation that the defendant was given the three days’ notice required by section 1161 of the Code of Civil Procedure. But the tenancy alleged in the complaint is a tenancy at sufferance, and not at will; and as the action is based upon the first subdivision of the section referred to, no notice was required. (Canning v. Fibush, 77 Cal. 196; Stoppelkamp v. Mangeot, 42 Cal. 322.) It is also claimed by appellant that Chay Yune should have been made a party plaintiff, because [598]it is shown in the complaint that he and the plaintiff are co-tenants. Section 884 of the Code of Civil Procedure answers this objection; it provides that any number less than all of the tenants in common may jointly or severally prosecute or defend any action for the enforcement or protection of their rights.

There are several grounds, however, upon which the judgment must be reversed. The complaint alleged that the monthly value of the rents and profits of the premises was the sum of $125. The answer denied that the rental value of the premises was the sum of $125, or any sum greater than the sum of $75. There is no finding upon this issue, and the record shows affirmatively that findings were not waived. There was an issue, also,— and it seems to have been the only question inquired into at the trial,— as to whether the defendant was holding possession of the premises by and with the consent of Chay Yune. Upon this issue, also, there was no finding. It is claimed by respondent that findings in actions of this kind are not required. This position, however, is manifestly untenable. (Code Civ. Proc., sees. 633, 634, 1174, 1177.)

The evidence does not support the judgment. It is expressly alleged in the complaint that “this plaintiff and one Chay Yune are successors in interest of said E. L. Goldstein, and to said building on the northwest corner of Dupont and Clay streets, and in and to said lease executed to Pee Han, and that they hold title to the same as tenants in common.” The uncontradicted evidence shows that the defendant was in possession of the property with the consent of said Chay Yune. All that the plaintiff was entitled to, therefore, was to be let into possession with the defendant, — to enjoy his moiety. (Freeman on Cotenancy and Partition, secs. 180, 220; Pickard v. Perley, 45 N. H. 191; 76 Am. Dec. 153; Ord v. Chester, 18 Cal. 80.)