Douglas v. Dakin

Appeal fbom a Judgment without a Statement. — On an appeal from a judgment, where there is no bill of exceptions or statement, the Supreme Court will not consider the action of the Court below upon a motion to strikeout part of a pleading, or any other matter not appearing in the judgment roll. Identity of Pabties Pbesumed fbom Identity of Names. — Where William J. Douglas was plaintiff in an action for rent, and the defendant set up a judgment obtained in another Court against William J. Douglas without averring the identity: held, that the identity of the parties is to be presumed from the identity of names. Ambiguity and Uncebtainty in Pleading. — An answer, in an action against a tenant for unlawful detainer, which avers that a person, not a party to a suit, had formerly brought an action to quiet title to the demanded premises, and that such person was at the time in the actual possession of the premises, claiming title in fee thereto, is not ambiguous or uncertain.

Appeal from the County Court of the City and County of San Francisco. William J. Douglas and Christopher Hutchinson brought this action, on the 22d day of August, 1872, against E. Dakin and J. G. Libbey, for unlawfully holding premises which they had leased from the plaintiffs, after rent fell due and demand had been made for its payment. The defendants, in their answer, deny the allegations of the complaint, and set up several defenses. In their third defense they aver that in November, 1871, while they were in possession of the property in suit as tenants of William J. Douglas and his wife, the City and County of San Francisco recovered a judgment in the Fourth District Court against aforesaid lessors, under which the premises were sold, and, upon demand of the purchaser, the defendants had ceased to attorn to the Douglases and had attorned to the purchaser at the Sheriff’s sale. In the fourth subdivision of their answer, the defendants aver that in March, 1868, Elizabeth Douglas commenced an action in the Fourth District Court against the City and County of San Francis go to quiet her title to the lot in suit, being at the time in actual possession, and claiming title in fee as her separate estate; that the defendant in that action answered, and by cross complaint claimed title in fee, and demanded judgment for the possession; that in December, 1869, judgment was rendered for the said defendant, which, on appeal to the Supreme Court, was affirmed in May, 1872, and in July following the possession was restored to the city and county, and that the defendants in this action are now in possession as tenants of the city and county, and not otherwise. The plaintiffs moved to strike out the third and fourth subdivisions of the answer as redundant matter, and the motion was denied. They also demurred to them as ambiguous and uncertain. The demurrer was overruled; the cause was tried and judgment rendered for the defendants on the 16th day of September, 1872. The plaintiffs appealed from the judgment, without a statement or bill of exceptions.