The pleadings are verified, and the answer denies the allegations of the complaint only in the conjunctive, and tenders an issue upon the unlawful character of the entry; denies that the defendants unlawfully entered and * * * do now unlawfully detain, etc. It cannot, therefore, be maintained that the plaintiff was correctly nonsuited for a failure to prove the entry of the defendant Murdock.
Nor was the action of the court in nonsuiting the plaintiff correct in other respects. The proofs upon the part of the plaintiff tended to bring the case within the second subdivision of section 1160, Civil Code Procedure, which provides that an unlawful entry made during the absence' of the occupant of lands, followed by a refusal to surrender upon notice of five days, shall be held to be a forcible detainer, and. tended to establish such a possession of the premises as would characterize the plaintiff in being an occupant thereof, within the last clause of that section.
The ruling of the court below was directly in conflict with our views, as expressed in Shelby v. Houston (38 Cal. 410), and Wilson v. Shakelford (41 Cal. 630).
Judgment and order denying a new trial reversed and cause remanded for a new trial.