Haight v. Green

Citations

• 19 Cal. 113

Syllabus

<p>The complaint in this case—ejectment—is sufficient within the rules laid down in Payne Dewey y. Treadwell (16 Cal. 220).</p> <p>Under our statute, an executor may maintain an action for trespass committed upon the real estate of Ms testator in Ms lifetime.</p> <p>In ejectment, plaintiff, after introducing his letters testamentary and proving the monthly value of the premises, offered in evidence a stipulation in these words: “ It is admitted that the plaintiff’s testator, Hetherington, was the owner of the premises prior to defendant’s entry; „ that defendant entered under him, and now claimed the premises as her property, and is in possession. The defendant does not design in this stipulation to admit a tenancy at any time; ” and rested: Held, that the stipulation was, prima facie, sufficient to maintain the action; because its effect is to admit title in Hetherington before defendant’s entry; that defendant entered under him, and afterwards claimed the premises in contravention of the tenancy.</p> <p>Held, further, that the latter clause of the stipulation, that it was not designed “to admit a tenancy,” cannot have the effect of excluding the legal conclusion of “ tenancy,” resulting from the admission of specific facts.</p> <p>Where a case in the Twelfth District was set for trial on a particular day, with the knowledge and consent of defendant’s attorney, and he then, two or three days before the day of trial, goes into Alameda county to try another cause there, without making any arrangement in respect to the first case, in which on the day fixed plaintiff had judgment—no one appearing for defendant, except to state the fact of the attorney’s absence, and to ask a postponement, which was denied : Held, that this Court will not review the action of the Court below in refusing to set aside the judgment because of the absence of said attorney.</p>