Jones v. Shay

Eoboible Entby and Detainee.—A person who is in the actual and peaceable possession of land, as the tenant at will of another, may maintain an action of forcible entry and detainer, if forcibly dispossessed. Tenant at Will.—If the owner of land permits another to occupy land without any lease or agreement to pay rent, and such other merely takes care of it for the owner, he is a tenant at will. Eeactice as to Review oe Evidence.—If the proof does not warrant the damages awarded in an action of forcible entry, the defendant, if he wishes to have the question reviewed, should either move for a new trial on that ground, or specify in his bill of exceptions in what particulars the evidence did not justify the decision.

Appeal from the County Court, City and County of San Francisco. Action of forcible entry and detainer to recover possession of a lot on Mission street, said city and county. On the trial, the plaintiff testified that his brother-in-law bought the lot in controversy, and allowed him to live on it and take care of it for him, and that he had no lease and paid, no rent.’ The counsel for the defendant moved for a non-suit, because the plaintiff had no right to maintain the action. The motion was denied. The case came up on a bill of exceptions, settled July 26, 1875. The plaintiff had judgment for three hundred dollars. The bill of exceptions states the testimony as to the plaintiff’s occupancy, and the motion for a nonsuit, and then proceeds: “Upon the trial of said cause there was no testimony offered by the plaintiff of any damage having been sustained by the plaintiff except that which might result to the plaintiff by being forcibly ejected from the premises. The court gave plaintiff damages in the sum of one hundred dollars, which was trebled, and this decision of the court is assigned as error.” There was no specification that the proof did not justify the damages. The defendant appealed.