Sullivan v. Cary

17 Cal. 80

• Court: California Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Cope, J. delivered the opinion of the Court

Field, C. J. and Baldwin, J. concurring.

This is an action by a landlord against a tenant, under the thirteenth section of the Act concerning Forcible Entries and Unlawful Detainers. Various errors, sufficient to reverse the judgment, were committed at the trial. It was necessary for the plaintiff to show that before the action was commenced he had demanded in writing the possession of the premises. Such demand was alleged in the complaint, and was not specifically denied in the answer, and the Court held that it was to be deemed admitted. But the answer denied generally “ each and every allegation ” in the complaint; and this, we think, was sufficient to put the plaintiff upon proof of everything necessary to maintain the action. An answer in a Justice’s Court, denying generally the allegations of the complaint, conforms substantially to the requirements of the statute. (Prac. Act, sec. 574.) It was also necessary for the plaintiff to show that he had terminated the tenancy by a notice to quit. The effect of the evidence was to establish a tenancy from year to year, and if the defendant was permitted to hold over without notice, a new term was created, and he cannot be legally dispossessed. (Adams on Ejectment, 143.)

The points made by respondent’s counsel are immaterial. The questions in the case arise upon a motion for a nonsuit, and upon the action of the Court in giving and refusing instructions. A motion for a new trial was therefore unnecessary.

Judgment reversed, and cause remanded for a new trial.