Cummins v. Scott

Citations

• 23 Cal. 526

Syllabus

<p>Where an undertaking on appeal is filed within the statutory time, and the sureties are excepted to, and appellant gives notice that they will justify, and both parties appear before the officer at the time fixed for justification, and a new undertaking is then filed in place of the old one, the appeal will not be dismissed because the undertaking was not filed within five days after filing notice of appeal.</p> <p>It is an essential averment in the complaint, in an action of forcible entry and unlawful detainer, that at the time of the alleged forcible entry, plaintiff was in the actual possession of the premises; and in order to maintain the action, plaintiff must prove this averment on the trial.</p>