Jones v. Shay

50 Cal. 508

Opinion

By the Court:

The motion for nonsuit was properly denied. The plaintiff’s proof shows that at the time of the forcible entry complained of the plaintiff was in the actual and peaceable possession of the premises in controversy, not merely as the servant of another, but as a tenant at will; and had therefore such a possession as would enable him to maintain the action in his own name. If the proof did not warrant the amount of damages awarded to the plaintiff, the defendant should either have moved for a new trial on that ground or have specified in his bill of exceptions in what particulars the evidence did not justify the decision in this respect, and have brought up the evidence on this point. But the defendant has done neither.

Judgment affirmed.