41 Cal. 242 | Cal. | 1871
This is an action for forcible. detainer, under the third section of the forcible entry and detainer Act of April 2d, 1866. (Stats. 1865-6, p. 769.) Judgment was entered for the plaintiff, and the defendant appeals, assigning as error certain rulings of the Court during the progress of the trial, as shown by bills of exception brought up in the record.
After filing his answer the defendant moved to quash the summons as insufficient; but the motion was properly denied. The only purpose of the summons is to bring the defendant into Court; and when he appears and answers he waives any defect-in the summons. Whether the summons be good or bad, its end has been accomplished when the defendant appears .and answers. Nor did the Court err in striking out a portion of the defendant’s answer and excluding the proof of the averments so stricken out. These allegations were, in substance, that the land in contest is a portion of the public domain of the United States; but is at present withdrawn from entry and sale; that in 1867 the defendant erected a cabin on it with the intention to acquire a right to it as a homestead, under the laws of the United States, so soon as the land should be subject to entry for that purpose; that in the following year one Ewing, against the will of the defend
I think the appellant has failed to show any error in the record, and that the judgment ought to be affirmed.