19 Cal. 374 | Cal. | 1861
Field, C. J. concurring.
Forcible entry and detainer.
1. We are of the opinion that the Court did not err in its refusal to dismiss the appeal because of the alleged insufficiency of the bond. The statute (Wood’s Dig. 469) regulating appeals from Justices’ Courts in such cases as this, seems to be complete in itself as to the mode of perfecting the appeal, prescribing the rules the Legislature thought necessary upon the subject; and those rules in respect to the bonds, etc., are independent of the general act regulating appeals from the judgment of a Justice. The People v. Harris (9 Cal. 571) is not, when considered in connection with the facts of that case, inconsistent with this principle.
2. We think the County Court had the power, after the setting aside of the judgment of the Justice, to order that the premises should be restored to the appellants. This order was necessary to perfect the jurisdiction of the County Court over the subject; and the right having been fully decided, we see no reason or justice in disposing of the matter piecemeal, when by one single judgment complete effect can be given to the adjudication. If money had been collected pending the appeal, or subsequent to the judgment appealed from, we presume the appellate Court could order its return; and that this would result from the plain and ordinary principle that when a Court has general jurisdiction of a subject, it
3. We see no proof of any actor acts on the part of the defendant Gran Lees, which made him amenable to this action, and the Court was right in ordering the nonsuit as to him.
4. Nor, upon the whole case, do we see any proof as to the defendant Hamer which would justify a verdict. It seems that a judgment of ejectment Avas had in the Circuit Court of the United States for the District of California, in a case of Clement Boyreau v. Robert Campbell, James Kennedy et al., for a tract of land, including, as it is claimed, the premises in controversy. A writ of restitution issued, and came to the hands of one Williams, acting as Deputy Marshal, who executed the writ, and turned the two Kennedys off the land, and put one Ward, as agent of Boyreau, in possession. About a month afterwards, Ward leased the premises to Hamer, the defendant. It is not shown that Kennedy had title to this land ; but it seems that Boyreau was the owner. The question here, however, is independent of the title. Waiving the question, whether the mere fact that the officer acted by a process valid on the face of it is not a sufficient protection to him and the person whom he may place in possession, so far as this particular process of forcible entry and detainer is concerned, it seems to us that the proceeding cannot be maintained as against the lessee, who, so far as appears, had no connection with the original tortious act. The case of Stark v. Barnes (4 Cal. 412) is cited to show that the' party succeeding to the original wrongful possession is liable in an action of forcible entry and detainer in the same manner as his predecessor. But that case does not go so far. There, Barnes came in without any new title, and merely succeeding to the claim and consummating the trespass of the first trespasser. But here, Hamer was not a trespasser at all. For all that appears, he leased the premises from the lawful owner of them, that owner having a right of entry, though, as we might concede, no right to dispossess Kennedy by force. It would be very unreasonable to hold that
This view renders it unnecessary to notice other points, for, upon the whole case, the verdict and judgment were right.
Judgment affirmed.
