198 P. 646 | Cal. Ct. App. | 1921
This is an action under a complaint in two counts, one based upon a forcible entry, the other upon a forcible detainer. Judgment went for the plaintiff and the defendants appeal.
The evidence shows, without dispute, that at a time when the agents of respondent were away from the premises in question, the appellants removed a certain lock from the door by means of which access was had to the place and to which lock respondent had the key. Appellants then effected an entrance to the premises and substituted a heavy padlock in place of the lock. Thereupon certain personal property of respondent was removed from the place, property of one of appellants was placed therein, and thereafter that appellant remained in possession of the premises, excluding respondent therefrom. At the time when appellants effected their entrance into the property respondent was five months in arrears in the payment of its rent. Respondent was in possession, before the entry of appellants, under a lease from some of them, the instrument containing a provision that in case the rent reserved by it were at any time unpaid it should be lawful for the lessors, "without previous notice or demand, to re-enter the demised premises and the same peaceably to hold and enjoy thenceforth as if this lease had not been made."
The appellants contend that the evidence does not support several findings of the trial court, the point made being dependent upon the settlement of two questions of law. It is insisted by appellants, first, that the acts committed by *314 them did not amount to a forcible entry; second, that they were permitted to retake possession of the premises, even in the manner in which they did, under the provision of the lease which we have quoted.
[1] The first question is not difficult of solution. The code provides (Code Civ. Proc., sec.
Coming now to the second question, Did the terms of the lease confer upon appellants the right to take possession of the property by means of a forcible entry, at the same time extending to them immunity from successful suit under the forcible entry statute? [2] In such an action it is necessary for the plaintiff to show, only, in addition to the forcible entry, that at the time of the entry he was peaceably in the actual possession of the property entered. (Code Civ. Proc., sec.
Appellants were guilty of a forcible entry, the terms of the lease are no defense, and the findings inveighed against are supported by the evidence.
The next question made by appellants is that the trial court erred in ordering restitution of the entire premises to respondent. This point is made in view of the fact that, at the time the lease was made to respondent, two certain other parties had leases to parts of the property, but the contention of appellants is completely answered by the fact that these two leases were assigned to respondent and that, at the time of the forcible entry complained of, it was in possession of the whole premises. Respondent was clearly entitled to a restitution of the place in its entirety.
Two other points are presented by appellants, but we do not deem them worthy of extended notice. They are conclusively answered in respondent's brief and they are not pressed in appellants' reply brief. Under such conditions we may well consider them as waived.
The judgment is affirmed.
Finlayson, P. J., and Craig, J., concurred. *316
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 June 16, 1921.
All the Justices concurred.