Opinion
Rehearing Granted July 2, 1928.
Appeal from Superior Court, Los Angeles County; Frank C. Collier, Judge.
Action by Herman R. Morris and wife against Dora A. Turley. Judgment for plaintiffs, and defendant appeals. Reversed.
COUNSEL
Frank G. Tyrrell, of Los Angeles, for appellant.
Thomas S. Bunn, of Los Angeles, and W. Blair Gibbens, of Ocean Park, for respondents.
OPINION
STEPHENS, Justice pro tem.
The complaint in this case contains two causes of action. The first cause is for forcible entry and the second cause is for forcible detainer of real property. The court made findings to the effect that the allegations as to the forcible entry were true, and then, without finding upon the facts as to the forcible detainer, found that defendant unlawfully withholds and keeps possession of the property. The court further finds: "That by reason of the said acts of defendant the plaintiffs have been damaged in the sum of $300." Judgment follows, awarding $300 to plaintiff, and ordering restitution of the real property. The judgment must be reversed for two reasons: The finding that the defendant "unlawfully withholds and keeps possession" of the property is a conclusion and not a finding of fact upon the cause of action alleging forcible detention of the property. Again, even if this were a sufficient finding, there is absolutely no evidence that the possession was withheld forcibly, as is alleged in the complaint. Assuming, but not deciding, that the facts proved a forcible entry, there is no manner of ascertaining from the findings whether the damages were wholly for the forcible entry, the "unlawful" withholding, or in some proportion for both.
Judgment reversed.
We concur: WORKS, P. J.; THOMPSON, J.