131 P. 765 | Cal. Ct. App. | 1913
Action to recover damages alleged to have been sustained by reason of the wrongful acts of defendants. The complaint is in three counts, each of which is stated to be a separate cause of action. Defendants demurred thereto, alleging as ground therefor that several causes of action had been improperly united therein. The demurrer was overruled, whereupon defendants answered, and upon trial the court found: "That all the allegations contained in the first cause of action are true, and that, except as to the allegations contained in said cause of action, the other allegations of the complaint are untrue"; and in accordance therewith gave judgment for plaintiff, from which, claiming that their demurrer was improperly overruled, defendants appeal upon the judgment-roll.
The complaint contains much evidentiary matter which, upon any theory of the case, is mere surplusage. The first count, as we construe it, alleges a cause of action based upon a breach of covenant contained in a lease of real and personal property made by defendants to plaintiff, it being alleged that during the term thereof defendants wrongfully and forcibly ejected plaintiff from the leased property, to his damage in the sum of one thousand dollars. The second count states a cause of action sounding in tort, it being alleged that at the time defendants wrongfully entered upon and took possession of said leased property plaintiff owned and had in the dwelling-house certain household furniture and other personal property, of which defendants took possession and refused to deliver the same to plaintiff, to his damage in the sum of one thousand dollars. The third count states a cause of action based upon section
The contention of appellants is that, under the provisions of section 427 of the Code of Civil Procedure, a cause of action in tort and one arising upon contract cannot be joined *281
in the same complaint. In Stark v. Wellman,
The ruling was not error, and the judgment is therefore affirmed.
*282Allen, P. J., and James J. concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 22, 1913.