Burnell v. Gregory

Cal. District Court

Burnell v. Gregory

1 Cal. Dist. Ct. 84

DecidedJune 15, 1857

StatusPublished

This text of 1 Cal. Dist. Ct. 84 (Burnell v. Gregory) is published on Counsel Stack Legal Research, covering California District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burnell v. Gregory, 1 Cal. Dist. Ct. 84 (Cal. Super. Ct. 1857).

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Opinion

Norton, J.

This case has been certified to this Court from a Justice’s Court, upon the question of title, I am not sure that this Court has jurisdiction. The action of forcible entry and detainer is regulated by statute, which provided that when the title is involved, the Justice shall proceed no farther. It is questionable whether this suit has been properly certified, but as I shall decide this case on another ground, it is unnecessary to pass upon this.

The defendants, Haynes and Gregory, are improperly joined; upon the ruling of the Supreme Court in Treat vs. Stuart k Bowman, 5 Cal. R., 113, Thompson alone being in possession.

This suit was brought by a landlord, not against a tenant entering and detaining from Mm, but against a person entering and detaining from Me lessee. The lessee, whose lease has not expired, might have brought forcible entry and detainer, but the landlord cannot under the circumstances. It appears that there has been some collusion between the landlord’s lessee, and the person in possession. I should say that when persons gain possession of property by any collusion whatever, with a lessee, they hold under the lessee.

There are certain forms prescribed by law in cases of this kind, one of which is, a demand for rent in writing, three days before suit. The demand in this case is defective in not specifying the amount of rent due. The requirements of the law w'ere not therefore complied with in this ease.

Judgment for the defendant.

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Norton, J.

This case has been certified to this Court from a Justice’s Court, upon the question of title, I am not sure that this Court has jurisdiction. The action of forcible entry and detainer is regulated by statute, which provided that when the title is involved, the Justice shall proceed no farther. It is questionable whether this suit has been properly certified, but as I shall decide this case on another ground, it is unnecessary to pass upon this.

The defendants, Haynes and Gregory, are improperly joined; upon the ruling of the Supreme Court in Treat vs. Stuart k Bowman, 5 Cal. R., 113, Thompson alone being in possession.

This suit was brought by a landlord, not against a tenant entering and detaining from Mm, but against a person entering and detaining from Me lessee. The lessee, whose lease has not expired, might have brought forcible entry and detainer, but the landlord cannot under the circumstances. It appears that there has been some collusion between the landlord’s lessee, and the person in possession. I should say that when persons gain possession of property by any collusion whatever, with a lessee, they hold under the lessee.

There are certain forms prescribed by law in cases of this kind, one of which is, a demand for rent in writing, three days before suit. The demand in this case is defective in not specifying the amount of rent due. The requirements of the law w'ere not therefore complied with in this ease.

Judgment for the defendant.

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Bluebook (online)

1 Cal. Dist. Ct. 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnell-v-gregory-caldistct-1857.