Citation Numbers： 1 Cal. 18
Judges： Bennett, Hastings, Lyons
Filed Date： 3/15/1850
Status： Precedential
Modified Date： 1/12/2023
By the Court,
This is an action instituted by plain
The petition alleges that on and before the fourth day of February, plaintiff was in lawful, quiet and peaceable possession of the lots described, and that on said day defendants and others, claiming to act under an order of the first alcalde, entered forcibly on the premises and ousted him from such possession; and he prays to be reinstated therein.
The answer sets up, that defendants were and are the legal owners of said lots, and that previous to the entering of plaintiff thereon, which he did with force and violence, they were themselves in possession. Plaintiff filed In the court below exceptions to the answer, in the nature of a demurrer, on the ground that it neither denied, nor confessed and avoided, any of the material allegations of the petition. The court overruled the exceptions, and rendered j udgment in favor of defendants ; from which ruling and judgment plaintiff appeals.
The answer certainly does not take issue upon any of the material allegations in the complaint, neither does it admit the allegations to be true, and seek to avoid them by new matter set up in avoidance, one of which should have been done. It attempts to change the whole nature of the investigation by tendering a new and distinct issue, and making the material question to he tried, not whether Ladd, at the time he charges, was in the quiet and peaceable possession of the premises, and was ousted by Stevenson & Parker, under the illegal order of the alcalde, but whether Stevenson & Parker were at some previous time in possession, of which they were illegally deprived by Ladd. This is clearly not the issue that should have been presented. If the defendants, being in quiet possession, were deprived of it by Ladd, as alleged, a court of competent jurisdiction would have afforded the means of redress ; of this they seem to have been aware, but mistook the proper court. The alcalde, at whose hands this redress was sought, has, alone, no judicial power whatever. (Feb. Mej. art. 35, fol. 371, §35;
When a party is in quiet and peaceable possession of lands, the law will not sanction any invasion of his rights by force. We think the order of the alcalde, being illegal, was null and void, consequently the acts of Stevenson & Parker must be viewed as if no such order had issued, and the dispossession of Ladd was a forcible entry. When he has been restored to the possession of which he was thus improperly deprived, it will then be time to try the issue sought to be presented in the answer of defendants, whether at some period previous to the 4th of February they were in quiet possession, and were deprived thereof by force.
To bold any other doctrine would be to declare that a party might with force and violence oust a possessor, and when he sought to be reinstated, in the manner pointed out by law, require him to exhibit a good and perfect title before he could be restored to the rights of which he had been illegally deprived.
It is therefore ordered, adjudged, and decreed, that the ruling and judgment rendered in the court of first instance be annulled, avoided and reversed, that there issue an order of re-pleader, commencing with the answer of defendants ; so as to present for trial the question whether Ladd was in peaceable possession of the property at the time he was ousted in the manner set forth in petition. Appellees paying costs of this appeal.
The order made by the alcalde was void for liis failure to acquire jurisdiction over the person of the defendant. This summary method of putting a person out of possession of premises, of which he is in the quiet and peaceable occupation, on an ex parte statement, and without citation, or notice in any way of the proceedings, is a novel mode of administering justice, to which I cannot give my assent. The alcalde’s order being void, the allegations of the complaint are simply, tl#.t the plaintiff, while in the peaceable occupation of premises, was violently dispossessed by the defendants. That mates out a sufficient cause of action to entitle the plaintiff to be restored to the possession, and requires the defendants either to deny such allegations directly and unequivocally, or to confess and avoid them. They have done neither; but instead thereof, have inserted in their answer a confused and unintelligible statement of something, in a manner unknown to any system of pleadings with which I am acquainted. I think the judgment should be reversed with leave to the defendants to apply to the district court of San Francisco to amend their answer on such terms as the court shall deem proper.