Button sued Warschauer in ejectment to recover the possession of the premises in controversy, and obtained judgment in the District Court, and, under the writ of restitution, Warschauer was expelled and Dutton was placed in possession. At the commencement of the action, and at the rendition of the judgment, Warschauer was the tenant, from month to month, of Mrs. Wheelock, the present plaintiff, and she having been notified by her tenant of the pendency of the action, defended the same in the name of the tenant; and after the execution of the writ of restitution she took an appeal in the name of her tenant to this Court, where the judgment was reversed and the cause was remanded for a new trial. The action was subsequently dismissed by stipu
The only question in the case is the one passéd on by the County Court in denying the motion for a new trial, which is, whether the eviction under the writ in the case of Dutton v. Warschauer terminated the relation of landlord and tenant between the present plaintiff and defendant.
An eviction of the tenant by title, paramount to that of the landlord, must of necessity determine the tenancy; and when the title of the landlord is set up in defense to the action and the landlord appears and defends at the request of the tenant, and in his name, he cannot be heard to say, in a contest with the tenant, that the tenant was not evicted by paramount title. In the action of Dutton v. Warschauer the defendant set up and relied on the title of his landlord, and she appeared and defended the action; and judgment having been rendered for Dutton, and under the writ issued thereupon, the tenant having been turned out of possession, the subsisting tenancy was destroyed. The judgment and the proceedings on the writ were competent Evidence to show the termination of the tenancy, and the defense having been made for the benefit of the landlord, as was held by this Court in passing upon the appeal in that case, (See 21 Cal. 609,) the burden was not on the tenant to prove, except by the production of the judgment, that Dutton’s title was
Did the appeal have the effect of reviving the tenancy ? The utmost that can be claimed for the appeal is that it suspended all further proceedings upon the judgment, and not that it set aside the writ after it had been executed and restored the parties to their original position.
The entry of the defendant as Dutton’s tenant, being in hostility to the plaintiff’s claim of title, did not have the effect to revive or re-establish the tenancy that had just been destroyed.
The plaintiff is not in a position to claim that upon the reversal of the judgment the parties were entitled to be restored to their original position, because the judgment of reversal had not been rendered when this action was commenced.
The question is not whether the plaintiff has a right of action in ejectment, but it is, as stated by the County Court, whether the relation of landlord and tenant existed between the parties at the time the action was brought; and we hold with the learned Judge of that Court, that the execution of the writ severed that relation.
Judgment affirmed.
Neither Mr. Justice Shaeter nor Mr. Justice Sanderson expressed an opinion.