County of San Joaquin v. Budd

De Haven, J. — This action is brought by the county of San Joaquin to recover possession of two rooms in the court-house of that county. A demurrer to the-complaint was sustained, and at the same time the court granted a motion to strike out a portion of the complaint, and thereupon judgment was rendered in favor of defendants. The plaintiff appeals from the judgment.

The complaint alleges, in substance, that a certain block of land in the city of Stockton was dedicated by its owner for public use for the erection thereon of the-court-house for San Joaquin, and such other public buildings as might, by the proper authorities, be deemed necessary, and that the plaintiff did erect thereon a. court-house, and was, on the 27th of January, 1891, in the possession, and was then and ever since has been entitled to the possession, of said block of land and of the court-house, and of those two rooms on the second floor thereof, each of which is designated, on the plans of said court-house, as “judges’ chambers”; and that [50]the defendants did, “on the day and year last aforesaid, wrongfully and unlawfully enter into said rooms, and did oust the plaintiff therefrom,” and now “ unlawfully withhold the possession thereof from plaintiff.”

The complaint also contained this paragraph, which is the part which was stricken out on motion of defendants: “ That said rooms were assigned by plaintiff for the use and occupation of the district attorney of said county, and on the seventh day of April, 1891, he demanded of defendants, in his own behalf, and in the name of and on behalf of plaintiff, that they vacate and surrender possession of said rooms, but to vacate or surrender possession thereof said defendants refused and still refuse.”

1. The court did not err in striking from the complaint the paragraph above quoted. It was merely the statement of a matter which might be proper to be shown upon the trial of the action, but it added nothing to the ultimate and issuable facts alleged in the complaint.

2. The complaint states a cause of action. It alleges facts showing plaintiff's right to the possession of its court-house, and of the rooms therein described, and that defendants wrongfully withhold the possession of said rooms from plaintiff. This is all that a complaint in this character of action is required to state. (Payne v. Treadwell, 16 Cal. 244; Marshall v. Shafter, 32 Cal. 194.) Indeed, that this complaint would generally be considered sufficient in an action to recover possession of real property is not denied, but it is argued in behalf of respondents that the court must take judicial notice of the fact that the defendants are judges of the superior court of the county of San Joaquin, and as it is alleged that the rooms occupied by them are marked upon the plans of the court-house as judges’ chambers, that it thus appears from the complaint that they are rightfully in occupation thereof, and that their occupation is the possession of the plaintiff. This seems to have been the view of the learned judge who presided in the court below, and rendered judgment for the defendants.