Mecham v. McKay

Citations

• 37 Cal. 154

Syllabus

<p>Review of Orders Entered by Consent.—Although the Supreme Court will not review judgments and orders entered by consent, yet, if it appear by a fair construction of a stipulation consenting to an order denying a new trial, that tho stipulation was only intended to facilitate an appeal, and not as an abandonment of the right to contest the correctness of the order, this Court will renew tho order. •</p> <p>Third Section of Forcible Entry Act.—The third section of the Forcible Entry and Detainer Act of April 2d, 1866, which makes persons entering lands or tenements in the night time, or during the absence of tho owner, and refusing to surrender possession on demand, guilty of forcible detainer, is not unconstitutional.</p> <p>Case Affirmed.—Caulfield v. Stevens, 28 Cal. 119, affirmed.</p> <p>Title in Unlawful Detainer.—Tho title cannot be tried in an action of unlawful detainer.</p> <p>Evidence of Title in Unlawful Detainer.—Neither evidence of a parol agreement for a title, nor evidence of a paper title, are admissible in an action of unlawful detainer.</p> <p>Admission of Pleading in Evidence.—If an answer has been superseded by an amended answer, the answer thus superseded is not admissible in evidence as an admission on the trial.</p> <p>What Pleadings Party Bound by.—Although a party is bound by the admissions contained in his pleadings, yet it is only the admissions in the pleadings upon which he goes to trial.</p> <p>Demand of Possession in Unlawful Detainer.—The demand and refusal of possession required by the third section of the Forcible Entry and Detainer Act must De made after tho entry of the defendant.</p> <p>Refusal of Possession in Unlawful Detainer.—The refusal, by the defendant in unlawful detainer, to permit the plaintiff to cut through the brick walls of the room, the possession of which is in controversy, is not evidence of a refusal to deliver up possession of the room, if that refusal was given for the purpose of preventing an injury to the w