Opinion
Hearing Granted by Supreme Court Dec. 1, 1927.
Appeal from Superior Court, Los Angeles County; Hugh J. Crawford, Judge.
Action for unlawful detainer brought by I. Blomquist and wife against I. M. Haley and wife. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.
See, also, 260 P. 572.
COUNSEL
Morris Abraham and Charles I. Rosin, both of Los Angeles, for appellants.
D. K. Gault and Schweitzer & Hutton, all of Los Angeles, for respondents.
OPINION
CRAIG, Acting P. J.
This action is one of unlawful detainer. It concerns the property and one phase of transaction mentioned in Haley v. Blomquist (Civil No. 5519) reported in 260 P. 569. The opinion in that case states the principal facts involved in this appeal. The appellants make no denial of respondents’ assertion that in the instant case the former failed to make certain payment required by the lease. The principal defense on the merits is that Blomquist purchased the lease, furniture, and furnishings of the hotel in question, and that not having paid Haley the purchase price the latter had a lien, under section 3046 of the Civil Code, for the sale price and had a right to hold the property until the purchase price was paid. In view of our decision in Haley v. Blomquist, supra, this defense is not available.
It is contended that there is no evidence to support the finding that Zeller assigned the lease to the appellants, and that they promised to carry out its terms. The point in this connection is that the written transfer between Zeller and Haley shows that the assignment was made to I. M. Haley, and that T. E. Haley does not appear as a party to it. An inspection of the instrument shows this to be true. However, the complaint contains the allegation that the assignment was made to I. M. Haley and T. E. Haley. The answer fails to deny this assertion, and therefore admits it to be true. This is sufficient basis for the finding that the transfer was so made. 24 Cal.Jur. 952. Any finding otherwise would be outside the issues and erroneous. Welch v. Alcott, 185 Cal. 731, 198 P. 626.
Certain testimony concerning the auction sale was admitted and later was ordered stricken out. The making of this order is assigned as error, but in view of the holding in Haley v. Blomquist, supra, that the sale was void and against public policy, the ruling becomes immaterial.
It appears that the judgment contained no provision that execution should not issue until 5 days after the entry thereof. It is contended that the failure of the court to include such a provision in the judgment was prejudicial error. In that behalf reliance is placed upon section 1174 of the Code of Civil Procedure, under the subdivision entitled "Execution." This provision does not affect the contents of the judgment. It merely regulates the time of issuance of execution after judgment, and the Code provision is sufficient to protect the appellants’ rights, regardless of the judgment.
We find no other points requiring our consideration. The judgment is affirmed.
We concur: THOMPSON, J.; COLLIER, Justice pro tem.