Page images
PDF
EPUB

2. Any justice of the peace shall have authority to inquire, as hereinafter directed, as well against those who make unlawful or foreible entry into lands, tenements, or other possessions, and detain the same, as against those who, having lawful and peaceful entry into lands, tenements, or other possessions, unlawfully detain the same; and if it be found, upon such inquiry, that an unlawful or forcible entry hath been made, and that the said lands, tenements, or other possessions, after a lawful entry, are held unlawfully, then such justice shall cause the party complaining to have restitution thereof.

1. The recorder of the city of Sacramento has no jurisdiction in these cases. Cra nise v. Carghill, 4 Cal. 120.

2. In this action, the holding over the land is the foundation of the action, and must be proven. Reed v. Grant, ib. 176.

3. A description of the land sufficiently definite to enable the administration of substantial justice, is all that is required. Hernandez v. Simon, ib. 182.

4. This action is a summary proceeding provided by statute, and does not belong to the district courts, by virtue of their constitutional jurisdiction. Ramirez v. Murray, ib. 293; Townsend v. Brooks, 5 ib. 52.

5. A landlord cannot maintain this action in his own name for an unlawful entry apon the possession of his tenant. Treat v. Stuart, ib. 113.

6. This statute provides a remedy for unlawful as well as forcible entry, and its policy is doubtless to avoid nice distinctions as to what constitutes force. Moore v. Goslin, ib. 266.

7. The jurisdiction vested in justices' courts to try these cases is not unconstitutional. O'Callaghan v. Booth, 6 ib. 63; Hart v. Moon, ib. 161.

8. In an action for holding over after the expiration of the term, three days' notice is all that is required. Garbrell v. Fitch, ib. 189.

9. The jurisdiction of the justices in these cases arises from the quasi criminal nature thereof, and falls under the head of “special cases," as used in the constitution. Small v. Gwinn, ib. 447.

10. The action may be maintained in three cases : when the entry is forcible, or the entry unlawful and the detainer forcible, or the entry lawful and the detainer forcible; but in any case there must be something of personal violence, either threatened or actual. Dickinson v. Maguire, 9 ib. 46.

11. In an unlawful entry there must be some ingredient of fraud, or willful wrong, on the part of the party making the entry. Ib.

Wat 1861 3. When any complaint shall be made in writing to any justice of

the peace, of any such unlawful or forcible entry, or unlawful detainer, said justice shall issue a summons, directed to the sheriff or any constable of the county, commanding him to summon the person or per

[merged small][ocr errors][ocr errors]

sons against whom such complaint shall have been made, to appear before the said justice on a day in such summons named, which shall not be less than ten days from the day of issuing the summons, and at the place therein mentioned.

1. A tenant in common cannot maintain an action of forcible entry and detainer against his co-tenant for holding over. The land must first be partitioned. Lick v. O'Donnell, 3 ib. 59.

2. The statute does not require an allegation of possession by the plaintiff; this objection is at most only subject to demurrer. Cronise v. Carghill, 4 ib. 120.

3. The rule that a penal statute must be declared upon by the party seeking recovery under it, does not apply to pleadings in justices' courts. O'Callaghan v. Booth, 6 ib. 63.

4. The complaint need not pray for treble damages to warrant the court in so adjudging. Hart v. Moon, ib. 161.

4. Such summons shall be served upon the person or persons against whom the same is issued, by delivering a certified copy thereof to such person or persons, at least two days before the return day thereof; and the officer serving the same shall make a special return of the time and manner of serving such summons.

5. After the return of the summons, served as hereinbefore provided, and at the time and place appointed in said summons, the justice shall proceed to hear and determine said complaint, unless either party shall demand a jury; in which case the justice shall issue a venire for a jury in the same manner and upon the same terms as in other cases provided for trial by jury in justices' courts, and such jury shall be sworn as in other cases.

6. If, at the time of making of such complaint, it shall be made to appear that the person or persons, against whom the said complaint is made, or either of them, are absent from the county, it shall be the duty of the justice before whom the same is made, to issue his summons, as hereinbefore provided, and the same may be served by leaving a certified copy thereof at the last and usual place of abode of such person or persons, not less than two days before the return day thereof, which copy shall be left with some member of the family, or some person residing at such place, of suitable age and discretion, to whom the contents thereof shall be explained by the officer leaving the same, and the officer shall make a special return of the time and manner of serving said summons, and the suit shall thereafter proceed the same as though a personal service were had of such summons.

7. The justice may, at his discretion, adjourn any trial under this act, not exceeding ten days, and when the defendant, his agent, or attorney, shall make oath that he cannot safely proceed to trial, for want of some material witness, naming him, that he has made due exertion to obtain such witness, and believes, if an adjournment be allowed, he will be able to procure the attendance of such witness, or his deposition, in time to produce the same upon trial; in which case, if such person or persons will give bond, with one or more sufficient sureties, conditioned to pay the said complainant for all rent that may accrue during the pending of such suit, and all costs and damages consequent upon such adjournment, the said justice shall adjourn said cause for such reasonable time as may appear necessary, not exceeding three months.

8. The testimony of any witness, which may be considered necessary by either party, may be taken in the same manner, and with the like effect as is provided for the taking of testimony in other cases in justices' courts.

9. On the trial, the complainant shall only be required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in actual possession at the time of the forcible entry, or was entitled to the possession of the preinises at the time of a forcible holding over. The defendant may show in his defense that he, or his ancestors, or those whose interest in such premises he claims, have been in quiet possession thereof for the space of one whole year together next before the said inquisition, and that his interest therein is not then ended or determined, and such showing shall be a bar to the prosecution, and in no case when the title of land is necessarily involved shall a justice of the peace have cognizance.

1. The plaintiff in this action must show an actual peaceable possession in himself, at the time of the entry. Treat v. Stuart, 5 Cal. 113.

2. What is actual and what constructive possession, in many cases, must be a ques. tion of fact for the jury. OʻCallaghan v. Booth, 6 ib. 63.

3. When the plaintiff in an action for a forcible entry, for the front of a town lot, proved that he had a small house on the rear of it: held, sufficient to warrant a jury in finding an actual possession of the whole lot. O'Callaghan v. Booth, 6 Cal. 63.

4. A mere survey and marking lines of a boundary, without an enclosure of the premises, is not a possession in law, unless made so by complying with the statute in reference to the mode of maintaining possessory actions on public land. Bird v. Dennison, 7 ib. 297.

5. The possesion must be actual, peaceable and exclusive, and not a mere scrambling or interrupted possession, or the exercise of casual acts of ownership over the premises. House v. Keiser, 8 ib. 499.

6. In an action for a forcible entry and detainer of a mine, against a corporation and C. and V., the jury returned a verdict of guilty as to C. and V., and not guilty as to the corporation : held, that such verdict is conclusive that the plaintiff was peaceably in actual possession of the premises at the time of entry. Fremont v. Crippen, 10 ib. 211.

10. If, upon the trial of any complaint under this act, the justice or jury shall find the defendant or defendants, or either of them, guilty of the allegations in the complaint, said justice shall thereupon enter judgment for the complainant to have restitution of the premises, and shall impose such fine, not exceeding one hundred dollars, considering all the circumstances, as he may deem just, and shall tax the costs for the complainant, and may issue execution therefor; and the said justice shall also award and issue a writ of restitution; but if the said justice or the jury find that the person complained of is not guilty, the justice shall tax the costs against the complainant, and issue execution therefor.

11. If the jury empanneled cannot agree upon a verdict, the justice may, with the consent of the parties, discharge them, and issue a venire returnable forthwith, or at some other time agreed upon by the parties.

12. In all cases of a verdict by the justice or jury for the complainant, the damages shall be assessed as well for waste and injury committed upon the premises, as for the rents and profits during such detainer ; and the verdict shall also find the monthly value of the rents and profits of the said premises ; and the complainant shall be entitled to recover treble damages against the persons against whom judgment has been rendered, which damages shall be assessed by the justice or jury, and when so assessed shall be trebled by said justice, and entered as a judgment in the cause, upon which execution may issue.

1. A, in pursuance of the provisions of the “act prescribing the mode of maintaining and defending possessory actions on lands belonging to the United States," entered upon unoccupied land, and marked it out, so that its boundaries might be easily traced, and commenced to build a house upon it, when he was ousted by B; held, in an action of forcible entry, A could recover the land from B, but without a fine or treble damages. Stark v. Barnes, 4 Cal. 412.

13. When any person shall hold over any lands, tenements, or other possessions, after the termination of the time for which they are demised, or let to him or her, or to the person under whom he or she holds possession, or contrary to the conditions or covenants of the lease or agreement under which he or she holds, or after any rent shall become due according to the terms of such lease or agreement, and shall remain unpaid for the space of three days, in all such cases, if the lessor, his heirs, executors, administrators, assigns, agent or attorney, shall make demand in writing of such tenant, that he or she shall deliver possession of the premises held as aforesaid, and if such tenant shall refuse or neglect, for the space of three days after such demand, to quit the possession of such lands or tenements, or to pay the rent thereof, due and unpaid as aforesaid, upon complaint therefor to any justice of the peace of the proper county, the justice shall pro ceed to hear, try, and determine the same, in the same manner as in other cases hereinbefore provided for, but shall impose no fine upon any such case mentioned in this section.

1. By the terms of an award, which was decisive between a landlord and his tenant, the tenant was to quit the premises on the 9th; held, the landlord had no right to give notice before the 10th. The tenant had then six days to remove, wherefore an action commenced on the 10th was premature. Ray v. Armstrong, 4 Cal. 208.

14. The preceding section shall not extend to any person who has, or shall have continued in possession one year after the termination of the time for which the premises were demised, or leased, or let to him or her, or those under whom he or she holds possession, or to any person who continues in possession three years, quietly and peaceably.

15. Every person summoned as a juror, or subpoenaed as a witness, who shall not appear, or who, appearing, shall refuse to serve or give

« PreviousContinue »