Opinion
Department 1.
Appeal from superior court of San Francisco. Forcible entry and detainer.
This action was brought under the provisions of the California Code of Civil Procedure respecting forcible entries and unlawful detainers. Section 1159 et seq. The property is a small lot in San Francisco, California, and is the same property that was involved in the use of Murray v. Green, 64 Cal. 388. The complaint set out the one cause of action in four separate counts, to each of which a demurrer was interposed: One ground of demurrer to each count was that it did not state facts sufficient to constitute a cause of action. The second, third, and fourth counts were demurred to for uncertainty in not repeating the description of the land given in the first count. Each count was demurred to for the misjoinder of Mrs. Lawler as a defendant. The demurrer was overruled. Defendants answered, and a trial was bad. Defendants' counsel made motions for a nonsuit on behalf of each defendant, which were all denied. Findings were filed, and judgment went for plaintiff. Defendants appealed from the judgment. Objection is made to the findings, because, of the four causes of action stated separately in the complaint, there are no findings as to any one of them, but the findings area medley of some parts of them all.
COUNSEL
A. L. Rhodes, for plaintiff and respondent.
Matt. I. Sullivan and R. A. Lawrence, for defendants and appellants.
JUDGES: Ross, J. We concur: MYRICK, J.; McKINSTRY, J.
OPINION
Ross, Judge
The demurrer was properly overruled. The findings show that, on the day mentioned in the complaint, the plaintiff was in the peaceable possession of the property, and that on that day, during his absence, Murray wrongfully entered thereon, and bas ever since forcibly detained possession thereof from the plaintiff. As there was no omission to find upon any material fact set up by the defendants, and as the facts found by the court, together with the admissions contained in the answer, sustain a muse of action alleged in favor of the plaintiff, defendants have no just ground of complaint because the court did not find the facts in as many different forms as the plaintiff, out of abundant caution, thought it best to employ in the statement of his cause of action.
In respect to the defendants Lawler and wife, it appears from the pleadings that they entered under Murray, and, together with him, detain the possession of the property from the plaintiff.
The motion for nonsuit was properly refused. The testimony on the part of the plaintiff tended to show that an the afternoon of the fourteenth of August, plaintiff's agent received notice that the tenant of the plaintiff, who had occupied the premises for many months, would vacate the premises the following day; that plaintiffs agent went to the premises at 8:30 a.m. on the 15th, and was informed by the wife of the tenant that they would not move out before 1:30 that day; whereupon she was informed by the agent that at 12:30 be would be there to take charge of the premises, and promptly at that hour he was on hand, when he found Murray in the house, with the windows and doors barricaded, and threatening to shoot the agent if he attempted to enter. Manifestly, when the tenant quit, the landlord was restored to the possession. It would be a monstrous doctrine to affirm that the landlord does not get possession of the premises upon the expiration of his tenant's lease if some third party can slip in between the moving out of the tenant and the moving in of the landlord. Judgment affirmed.
We concur: MYRICK, J.; McKINSTRY, J.