Shelby v. Houston

Citations

• 38 Cal. 410

Syllabus

<p>Causes op Action under the Statute of 1866 in Relation to Forcible Entries and Detainees.—They are, First—Forcible entry; Second—Forcible detainer, of which there arc two kinds—one defined in the second, and the other in the third sections; and fraud, as an adjunct of each.</p> <p>Complaint in Forcible Entry.—Forcible entry, forcible detainer in both forms, and fraud, may all be united in the same complaint, but should he separately stated; and, if not so stated, the complaint is bad on demurrer, but the objection is waived if not taken by demurrer.</p> <p>Variance between Complaint and Testimony in Forcible Entry—Is immaterial, and if the complaint charges one offense, and the testimony makes another, the Court should direct the complaint to be amended so as to conform to the testimony; but if this is not done, the judgment will not, for that reason, bereversed, but the Court below will be directed to cause the complaint to be amended, if the record shows that upon request it refused to do so, hut not otherwise.</p> <p>Appeal on Findings Only.—If the appeal is allowed to stand upon the findings, the judgment will not ho reversed, because all the facts requisite to sustain it have not been found; on the contrary, the missing facts will he presumed to bo consistent with the judgment.</p> <p>Idem.—Before a judgment can be reversed, when the appeal stands upon findings only, it must appear that the facts which have been expressly found, or some of them, arc repugnant to the judgment.</p> <p>Idem.—If the findings in an action under the statute in relation to forcible entries and detainers shows affirmatively that the entry or detainer was without force, violence, fraud or menace, they are repugnant to the judgment, so far as it may ho for a forcible entry or forcible detainer, as defined in the second section of the statute, but not so far as it may he for a forcible detainer, as defined in the third section.</p> <p>Unlawful Entry—Is a peaceable entry made in had fai