75 P. 332 | Cal. | 1904
This is an appeal by defendant Charles Sladky from an order of the superior court granting the plaintiff's motion for a new trial. The action was in unlawful *620 detainer, the complaint alleging that Sladky, as assignee of a leasehold interest in plaintiff's land, and defendant Eaton, claiming to have some rights under the lease, were unlawfully holding over and continuing in possession of said land after certain alleged violations of the covenants and conditions of said lease, and after notice in writing requiring them to quit and deliver up to plaintiff possession of the demised premises. Judgment for restitution and possession of said premises was asked, together with damages for the unlawful detainer, and also for the violation of the covenants of the lease.
Sladky and Eaton filed separate answers, Sladky alleging that prior to the service upon him of notice to quit he had regularly executed to Eaton an assignment of the lease and all of his rights thereunder, and had, prior to the service of such notice, delivered to said Eaton full possession of said premises, and that he had not thereafter been in possession of any part of said premises. The action was tried with a jury, which rendered a special verdict. The following special issues, with ten others relating to other matters, were submitted to the jury, viz.: 1. Had the defendant, Charles Sladky, assigned his interest in the lease mentioned in the complaint to defendant, George R. Eaton, prior to the service of the notice to quit on the defendants, Eaton and Sladky? 2. Had the defendant, George R. Eaton, taken possession of the premises referred to in the lease prior to the service on him of the notice to quit? To each of these queries the jury answered "Yes," and the record shows no evidence in conflict with these findings. The record shows that the notice to quit was served on Sladky and Eaton on the same day. Upon the other issues, the special verdict was also in favor of both Sladky and Eaton. Judgment in defendants' favor was thereon entered.
While plaintiff's notice of motion for a new trial specified as a ground therefor insufficiency of the evidence to justify the verdict in favor of defendants on any of the issues, there is not in the statement on motion for a new trial any specification of insufficiency of evidence to justify the finding of the jury upon either of the issues above set forth, or any such specification relating in any degree whatever to the *621 subject-matter thereof. In such statement there is no assignment of any error of law, in any way material to the proper determination of these issues, or the determination of any question relating to the possession at the time of the service of the notice to quit or thereafter.
Some question is made as to whether the order of the lower court granting a new trial excludes insufficiency of the evidence as one of the grounds, this question arising from the fact that the opinion signed by the judge in deciding the motion and filed, which purported to order a new trial, did state that he would not disturb the verdict on that ground, while the order entered in the minutes was general in terms. This question would appear to be settled by the decision of this court in Newman v. Overlandetc. Ry. Co.,
As insufficiency of the evidence was one of the grounds specified in the notice of motion for a new trial, we would be compelled to assume, in favor of the order appealed from, that the motion was granted upon that ground, if the statement discloses a case in which the superior court would have been authorized to grant the motion on such ground, as against the defendant Sladky. The superior court could not, however, properly grant the motion for a new trial upon the ground that the evidence was insufficient to justify the findings of the jury hereinbefore set forth as to the assignment by Sladky to Eaton, and the taking of possession of the premises by Eaton prior to the service of the notice to quit, for the statement contained no specification in relation thereto, and, so far as that matter was concerned, the statement could not be considered by the court. (Hayne on New Trial and Appeal, sec. 150; Code Civ. Proc., sec. 659, subd. 3.) The findings of the jury in that regard stand unchallenged, and, so far as Sladky is concerned, we have a case where an assignee of a leasehold interest, who has, as such assignee, been in possession *622 of the demised premises, has prior to the service of any notice to quit assigned his interest to another, and deliveredpossession to such other. In other words, at the time of service of such notice to quit, Sladky was not "continuing in possession" of the demised premises.
It would seem to require no argument to show that the summary proceedings provided, as the title to the chapter relating to them states, "for obtaining possession of real property in certain cases," will not lie against the mere assignee of a lease, who has again assigned and delivered possession to his assignee. We are, of course, speaking of an assignment and delivery of possession actually and in good faith made, for the pleadings and unchallenged findings of the jury and the absence from the statement of specifications relating to this matter permit no other assumption as to the character of the assignment and delivery of possession in this case. It is therefore unnecessary to determine what the situation would have been if, as is now contended by respondent, the assignment and delivery by Sladky to Eaton had been fraudulent, for that question is not presented by the record. It is also entirely immaterial, so far as Sladky is concerned, whether or not he had been guilty of a violation of covenants of the lease. He was not guilty of unlawful detainer in retaining possession of the premises after breach of covenants, if there was a breach, so long as notice requiring the surrender of possession of the premises was not served upon him (Schnittger v. Rose,
It is well settled that this proceeding can be resorted to only in the cases and by and against the parties mentioned in the statute. (Martel v. Meehan,
The statute is so plain and unambiguous that it is unnecessary to cite authorities in support of the proposition that an assignee who has assigned the lease and delivered possession of the demised property to his assignee prior to the service of the notice to quit does not come within its terms. As was said in the early case of Reed v. Grant,
Under these circumstances it is immaterial whether or not the evidence was conflicting in regard to other matters. The uncontradicted evidence and the unattacked findings as to the assignment and delivery of possession of Sladky prior to the service of notice to quit conclude the case in his favor, so far as the question of sufficiency of evidence is concerned, and the trial court could not grant a new trial as to him on the ground of insufficiency of the evidence.
No other legal ground for the granting of a new trial as to Sladky appears in the record.
It is ordered that the order granting plaintiff's motion for a new trial be and the same is, so far as it affects the defendant Sladky, hereby reversed.
Shaw, J., Lorigan, J., Henshaw, J., Van Dyke, J., and Beatty, C.J., concurred. *624