38 Cal. 423 | Cal. | 1869
The time for an appeal from a judgment commences to run from the rendition of the judgment, and not from the order sustaining the demurrer to the complaint. The appeal in this case was taken within a year from the time of the rendition of the judgment," and was within time. (Practice Act, Sec. 336.)
It is provided by Section 236 of the Practice Act, that “the purchaser, from the time of the sale until a redemption, * * * shall be entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof,” and the question is, whether
The defendant contends that the plaintiff has not averred that the defendant did not pay the rent to Cowing in advance. If it is the fact that the rent was paid in advance, that is a matter of defense, and should be set up by the defendant in avoidance of his prima facie liability to the plaintiff for the rent. The plaintiff is not required to anticipate a possible defense and negative it in advance. We would not be understood as holding that a payment in advance would relieve the defendant of his liability,'unless it was made before the lien of the judgment attached to the premises. The allegation that the rent was “payable monthly” is not an averment that it was payable in advance.
Judgment reversed, and cause remanded with directions to overrule the demurrer.