Opinion
Appeal from the County Court of San Joaquin County.
In November, 1864, plaintiff, being in the possession of certain lands in San Joaquin County, leased the same to the defendant, against whom while in possession under the lease, to wit: December, 1865, W. H. Lyons commenced in the District Court for said county, an action of ejectment for the recovery of said land, and in due course recovered judgment as prayed, and in January, 1866, under process issued on said judgment, was put in possession, which possession was held by him in the person of his agent, Edgar W. Parish, until the 13th of May, 1867.
In August, 1866, plaintiff recovered judgment against defendant as his (plaintiff's) tenant holding over, in the County Court of San Joaquin County in a " Forcible Entry and Unlawful Detainer," an action for the restitution of said lands; and on the said 13th day of May, under a writ issued for the enforcement of the judgment, the Sheriff of said county evicted Edgar W. Parish, the agent of said Lyons, and placed plaintiff in possession. Subsequently, on motion of said Lyons made in this cause in the County Court, it was ordered that Edgar W. Parish, as agent of said Lyons, be restored to the possession of which he had been deprived by the Sheriff under the last described writ.
Before this appeal was taken the form of said order in all essential respects was entered as an order by the Clerk in the records of the County Court, founded on a memorandum placed on the files in this cause, written by the Judge of the Court, but not signed; but said order was only made by the County Court subsequent to the perfection of this appeal by the plaintiff.
COUNSEL:
Geo. W. Tyler, for Appellant.
L. W. Elliott, for Respondent.
JUDGES: Rhodes, J.
OPINION
RHODES, Judge
There is nothing in the transcript to identify the affidavits as those read on the hearing of the motion; but objection on that ground is waived by the failure to present it according to Rule XIII of this court.
The judgment roll, the writs and other documentary evidence mentioned in the transcript cannot be considered on this appeal, because there is no statement, nor anything purporting to be a statement, of the evidence, settled and certified or agreed to, as is required when the case is presented upon other evidence besides the affidavits. (Whetherbee v. Davis, 33 Cal. 549.) Objection on this ground is not required to be taken under Rule XIII, for, if it had been taken, the defect could not have been remedied by the appellant. He could not have supplied the omission had it been pointed out, because there was no statement in the court below. This defect is fatal to the appeal.
The appeal was taken before the order was made. The order entered by the Clerk, that Lyons be restored to the possession, was unauthorized; and the order which was made by the court directing Edgar W. Parish as the tenant of Lyons to be restored to the possession was made after the appeal was taken. That order is the only one that can be regarded as the order of the court.
Waiving these objections, the appellant must fail on the merits. Neither Lyons nor his tenant, Edgar W. Parish, were parties to the action in the County Court of Rogers v. Parish, nor did either of them enter upon the premises under Isaac Parish, the defendant. They were not, therefore, bound by the judgment in that action, nor amenable to the writ of restitution issued upon the judgment. (Wattson v. Dowling, 26 Cal. 124; Long v. Neville, 29 Cal. 135.)
Order affirmed.