Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 37 Cal. 154 at 166.
Appeal from the County Court of Sonoma County.
The following was the stipulation upon which the motion for a new trial was denied:
" It is hereby stipulated and agreed by and between the parties to this action, that the motion for a new trial, on the part of said defendants in this action now pending in said Court, may be overruled by order of said Court staying all proceedings upon the judgment in favor of said plaintiff, be continued in force for ten days; and in case the said defendants perfect an appeal to the Supreme Court within said ten days, then and in that case the said order staying proceedings shall continue in full force and effect until the final determination of the rights of said parties on such appeal.
" Done at Santa Rosa, this 11th day of November, 1867.
" A. W. Thompson, Attorney for Plaintiff.
" George Pearce,
" For self, and attorney for defendant Angus McKay."
The following were the seventh and eleventh, thirteenth and ninth instructions asked by defendant and refused by the Court:
" 7th. If the jury believe from the evidence the demand for possession was made before the entry into the room, they must find for the defendants.
" 11th. If the jury believe from the evidence there was a refusal after demand made to let the plaintiff into the possession of the room, still they must believe the refusal was upon demand made after the entry into the room in controversy.
" 13th. The refusal to permit Hill to cut through the wall in the third story, is not evidence of a refusal to let Mecham take possession of the room in the second story, if the jury believe the refusal was intended to prevent injury to the property of McKay in the walls of the third story.
" 9th. If the jury believe the defendant Pearce entered the room in 1857 as a tenant of McKay, and continued to occupy as a tenant, but paid rent to another against the will of McKay, that they are at liberty to consider the possession of Pearce during the time as the possession of McKay, and disregard the fact that Pearce paid rent to another; and in the event they should so believe, they will consider the question whether the plaintiff was an actual occupant of the room at the time of the entry, or within five days next preceding the day of the entry; and should they find that he was not, they must find for the defendants."
The following was the twelfth instruction, also refused by the Court:
" 12th. This taking possession of the stairway was not such an entry as will enable the plaintiff to recover therefor in this action."
The following was the first instruction, as asked by the defendants. The Court, before giving it, modified it by inserting after the word " entry," where it occurs first, the words " and had not been occupied for five days prior thereto:"
" 1st. If the jury believe from the evidence that the defendants entered the premises under a claim of right, and that the room in controversy was unoccupied at the time of the entry, and no force was used to effect the entry, they should acquit the defendants."
COUNSEL
The order appealed from in the case at bar was entered upon a stipulation, and sufficiently shows that it was not only in contemplation of both parties that the order should be appealed from and reviewed, but the appeal was to be perfected within ten days. In Coryell v. Cain, 16 Cal. 567, there does not appear to have been anything in the record indicating either an intention of either party to appeal or an agreement touching the point. How, then, is a stipulation that a stay of proceedings be had until the appeal is determined in this Court, to be construed?
The complaint does not allege force or circumstance of terror in either the entry or detainer complained of, without which the County Court failed to obtain jurisdiction of the subject of the action. Section eight, Article VI, of the Constitution of this State reads as follows: " The County Courts shall have original jurisdiction of actions of forcible entry and detainer," etc. In general, it would appear quite sufficient to call the attention of this Court to the want of jurisdiction in the Court below, manifest upon the face of the complaint; but as the Legislature, by enactment, has attempted to define what acts shall constitute force, and the complaint in this case follows, as near as may be, the language of the statute, the question is presented whether the Legislature can, by defining what acts shall constitute force, change the jurisdiction of the County Court, or the meaning of the word force, as used in the Constitution.
We contend that the Legislature cannot, by such enactment, either change the meaning of the word force, as used in the Constitution, or confer jurisdiction upon the County Court in a class of cases not intended in that instrument. (Parsons v. Tuolumne Water Company, 5 Cal. 43.) Force is not only the gist of the action, but determines the jurisdiction, and must be both alleged and proved. (Thompson v. Smith, 28 Cal. 527; McEvoy v. Igo, 27 Cal. 375; Owen v. Doty, 27 Cal. 502.) Facts essential to confer jurisdiction must be alleged. (Doll v. Fuller, 16 Cal. 433.)
The appellants offered to show a complete title and right to the possession, not for the purpose of showing either title or a right to the possession, but to show that the possession of appellant Pearce for nine years next before the 1st day of August, 1866, had been and was the possession of McKay. (Haley v. Palmer, 9 Dana, 320.)
George Pearce, for self and co-Appellant.
A. W. Thompson, and Geo. Cadwalader, for Respondent.
In Brotherton v. Hart, 11 Cal. 405, it was held that " where a party stipulates that a motion made for a new trial should be denied, he cannot questionthe correctness of the order in this Court." And so it was held in 22 Cal. 456, that an appeal did not lie from a voluntary nonsuit. The question of jurisdiction of the County Court is decided in Caulfield v. Stevens, 28 Cal. 118.
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
By the Court, Crockett, J., on petition for rehearing:
In the petition for rehearing, the plaintiff's counsel assumes that we have fallen into an error of fact in respect to the date of the plaintiff's demand to be let into the possession. It is true our opinion, as published in the newspapers, fixes the date in April, 1866, as assumed by the counsel; but this was the result of a typographical error, and on reference to the original opinion on file in the case it will be found that we fix the date correctly as in September, 1866. But there is a conflict in the evidence on the point whether the defendants had taken the actual possession of the room in contest at the date of the demand in September, 1866. The defendant Pearce testifies that on the 24th of August, 1866, he occupied a room on the south of the room in dispute, but there was no communication between them, and never had been; that he continued to occupy the room on the south until the last days of September, 1866, and until some days after the date of the demand, and that he was not, in any sense, using or occupying the room sued for at the times the notices and demands were made and served on him.
He further testified that he never knew the defendant McKay to occupy the room an hour since he had known him, though he had known him ever since the house was built. On the other hand, the plaintiff put in testimony tending to show that Pearce exercised acts of ownership over the room on the evening of the twenty-fourth of August and afterward up to the first of September. It was for the jury to judge of the credibility of the testimony, and decide whether the entry of Pearce was before or after the demand made by the plaintiff for the possession on the third and again on the eighth of September. The Court, therefore, improperly refused the seventh and eleventh instructions asked by the defendants.
We see no reason to change the views expressed in our former opinion, in respect to the admissibility in evidence of the original answers of defendants.