Frisbie v. Whitney

California Supreme Court

Frisbie v. Whitney

1 Cal. Unrep. 129

CourtCalifornia Supreme Court

DecidedMay 6, 1864

DocketNo. 4020

StatusPublished

This text of 1 Cal. Unrep. 129 (Frisbie v. Whitney) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frisbie v. Whitney, 1 Cal. Unrep. 129 (Cal. 1864).

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Opinion

SAWYER, J.

We think the facts of this case, as shown hy the evidence, insufficient to maintain the action of forcible entry and detainer. The entry was peaceable. Admitting that the entry was unlawful, within the meaning of the statute relating to this action, as heretofore construed by the supreme court, there is no sufficient evidence of' a forcible detainer to justify a recovery.

The facts proved would be sufficient to authorize a recovery in an action of ejectment, but not in an action for an unlawful entry and forcible detainer. Tbe latter action is highly penal in its character and must be confined to the cases specified in the statute. To sustain the recovery in this case would be to abolish all distinctions between the actions of ejectment, and forcible entry and detainer. The motion for a nonsuit should have been granted.

Judgment reversed and the court below directed to enter a judgment of nonsuit.

We concur: Sanderson, C. J.; Shafter, J.; Rhodes, J.

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SAWYER, J.

We think the facts of this case, as shown hy the evidence, insufficient to maintain the action of forcible entry and detainer. The entry was peaceable. Admitting that the entry was unlawful, within the meaning of the statute relating to this action, as heretofore construed by the supreme court, there is no sufficient evidence of' a forcible detainer to justify a recovery.

The facts proved would be sufficient to authorize a recovery in an action of ejectment, but not in an action for an unlawful entry and forcible detainer. Tbe latter action is highly penal in its character and must be confined to the cases specified in the statute. To sustain the recovery in this case would be to abolish all distinctions between the actions of ejectment, and forcible entry and detainer. The motion for a nonsuit should have been granted.

Judgment reversed and the court below directed to enter a judgment of nonsuit.

We concur: Sanderson, C. J.; Shafter, J.; Rhodes, J.

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Bluebook (online)

1 Cal. Unrep. 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frisbie-v-whitney-cal-1864.