Mitchell v. Davis

Citations

• 23 Cal. 381

Syllabus

<p>On the trial of an action of forcible entry and detainer, the plaintiff offered in evidence a judgment against defendant awarding possession of the land; and the writ of restitution issuing on the same; and the Sheriff’s return thereon: held, to be competent evidence, for the purpose only of showing the extent of plaintiff’s possession, and that defendant was estopped from contesting the same.</p> <p>The Supreme Court, in reversing a judgment, passed upon a point of law, as resulting from the facts then before it: held, that the rule that the law, thus laid down, becomes the law of the case in all its stages, only applies so long as the evidence develops the same state of facts; and that, if on the new trial, the evidence shows a different state of facts from that shown on the first trial, the law of the case will be that resulting from this new state of facts.</p> <p>When irrelevant testimony is offered by one party, in the course of a trial, and objected to by the other, and is admitted by the Court, under the objection; and afterwards, before the close of the trial, the party introducing the evidence asks leave to withdraw it, and the other party objects, and the Court, under the objection, refuses leave : held, that this last objection was a waiver of the first, and cured the error.</p> <p>If the party guilty of a forcible entry, has any title or right of possession, Ms title or right of possession cannot be tried in an action of forcible entry and detainer. He must first deliver up the possession, forcibly acquired; and then, he may litigate his title or right to possession in a proper action.</p>