Knowles v. Crocker Estate Co.

THE COURT. Action founded on an alleged forcible entry upon real property and also a forcible detainer thereof. In the first count of the complaint it is alleged,among other things,that on November 16, 1896, plaintiff was in 'the peaceable and undisturbed possession of certain described lands,and that while he was so in possession the defendants with force, et cetera, entered thereon and “in a forcible manner ejected plaintiff and put him out of said real property” and broke down his fences inclosing the same. In the second count of the complaint plaintiff repeats by reference the allegations of the first, and further avers that since the said forcible entry the defendants, by force and menaces and threats of violence, have held and yet hold possession of the land aforesaid. Defendants demurred to each count of the complaint, on the grounds that it does not state facts sufficient to constitute a cause of action, and for uncertainty in that it cannot be ascertained therefrom “what was the character of the alleged possession of plaintiff of the property described.” The court overruled the demurrer, and upon the subsequent trial of the cause rendered judgment in plaintiff’s favor for restitution of the premises, with treble damages.

The only question of moment made by defendants on appeal concerns the ruling of the court on the demurrer. They urge that the first count of the complaint was bad for that it does not allege actual possession by the plaintiff at the time of the forcible entry. The statute requires that plaintiff shall prove in actions of this nature that he was “peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer.” (Code Civ. Proc., sec. 1172.) And there is no doubt that in the proceeding for a forcible entry—as in the first cause of action of the complaint here—the plaintiff must show by his pleading that he was in actual possession of the property when it was invaded by the defendant, since it is intrusions upon actual possession—. as distinguished from constructive—for which the statute was designed to afford a summary remedy. (Cummins v. Scott, 23 Cal. 526; More v. Del Valle, 28 Cal. 170; Voll v. Hollis, 60 Cal. 569, 573, 574; Ely v. Yore, 71 Cal. 130.)

This complaint is unquestionably a defective pleading. Whether it is so radically defective as to be open to successful [266]attack upon general demurrer, or whether' it may he said that by way of argument and inference it contains averments sufficient to pass a general demurrer, need not here he decided, for we think it beyond question that the ground of special demurrer was well taken, and the amendment to the complaint which must follow the sustaining of the special demurrer should relieve the pleading from the defect complained of under the general demurrer.