No. 2,481.

#### JOHN TREAT, Respondent, *v.*WM. FORSYTH et. *al.,*Appellants.

Forcible Entey and Detainee. — Pleading.—MmroiNDEB.—Demdebeb.—Ad objection to a complaint, -which slates in the same count a cause of action for forcible entry and detainer, under the first section of the Forcible Entry Act, of 1866, and also a cause of action for a forcible detainer, under the third section of the same act, is waived unless a demurrer for a misjoinder is interposed.

Idem. — Possession of Plaintiff. — Conflicting Evidence. — Where the evidence is conflicting as to the possession of the plaintiff at the time of the alleged unlawful entry of defendant, the finding will not be disturbed.

Idem. — Unlawful Holding. — The possession of defendant under an unlawful entry is an unlawful holding, in the absence of anything occur-ing, after such entry to give him a right of possession, as against the plaintiff.

Appeal from the County Court of the City and County of San Francisco. >

This is an 'action for forcible entry and detainer under the statute of 1866.

*485Judgment was rendered for tbe plaintiff for *restitution*of *the premises,*and defendant moved for a new .trial; tbe motion was denied, and defendant appealed from tbe judgment and from tbe order denying tbe motion for new trial.

Tbe defendant cited tbe following grounds of error in tbe motion for a new trial, and upon appeal after tbe motion was denied;

*First*— Errors of law occurring at tbe trial and excepted to by defendant’s counsel, to wit: tbe admission in evidence of tbe judgment roll in tbe District Court of tbe 12tb Judicial District, No. 41,208, and tbe writ of restitution.

*Second*— Insufficiency of tbe evidence to justify tbe findings or judgment of tbe Court, and that tbe same are against law in tbis.

*First*— That tbe-evidence fails to show any possession or right of, in or on tbe part of tbe plaintiff at tbe commencement of tbis suit, or more than one year prior thereto.

*Second*— That tbe evidence fails to show any forcible or unlawful entry on tbe part of tbe defendants; on tbe contrary, tbe evidence shows tbe entry to have been peaceable, quiet and unobtrusive.

*Third*— That tbe evidence shows there was no forcible or unlawful bolding of tbe premises; on tbe contrary, that tbe same was peaceable, and not held by or with force or threats of any bind.

*Fourth*— That tbe findings and judgment should have been for tbe defendants instead of for tbe plaintiff.

*Shafter, Southard*and *Seawell,*for Appellants.

Tbe complaint in tbis action is for a forcible entry and detainer. Tbe whole case shows that there was no force in defendant’s entry. They entered quietly and peaceably; so that tbe plaintiff must support bis judgment, if be can, on tbe theory that tbe defendants, although their entrv was peaceable, committed a *fwcible detainer.*

But tbe plaintiff cannot recover, even if a forcible detainer be proved. Tbe complaint in tbis action consists of one count. It states that tbe defendants on tbe 10th of Novem*486ber, 1869, made a forcible entry into the premises, “ and bave eyer since forcibly and unlawfully detained possession of said premises from said plaintiff.” The plaintiff haying failed to proye a forcible entry, and the alleged forcible de-tainer being stated as a continuation of the original entry, the plaintiff cannot rely upon such detainer as an independent ground of recovery. Upon this point the case of *{Preston*v. *Kekoe,*15 Cal. 315;) is conclusive. But even if the complaint be deemed sufficient to support a judgment for forcible detainer, there is no proof of forcible detainer. This Court has repeatedly held that forcible de-tainer, must be accompanied with violence, actual or threatened. *{McEnvoy*v. *Igo,*27 Cal. 375; *Valencia*v. *Couch,*32 Cal. 340; *Thompson*v. *Smith,*28 Cal. 527.)

The plaintiff must, in order to make out forcible detainer, bring the case within the third section of the Act of 1865-6.

The plaintiff was neither an occupant, nor in possession, nor entitled to the possession of the premises, at, or before the time of defendant’s entry.

*M. Bergin*and *I. N. Thorne,*for Bespondent.

All the facts essential to sustain a cause of action under Section 3 of the Forcible Entry and Detainer Act of 1865-6, are fully alleged, and although the alleging force also was good cause for demurrer, on the ground that separate causes of action were united in the same court, yet appellants having failed to interpose a demurrer, it is now too late to urge the objection. *{Shelby*v. *Houston,*38 Cal. 410; *Mecham*v. *McKay,*37 Cal. 155.)

The plaintiff has shown that he was in the actual undisturbed possession of the premises in controversy within five days preceding the unlawful entry. It will be borne in mind that this case-was tried by the Court, and although no findings were filed, yet every fact essential to support the judgment is presumed to have been found. *{Satterlee*v. *Bliss,*36 Cal. 513.)

' In conclusion, we would observe that there was evidence on the part of the respondent sustaining the findings of *487tbe Court in bis favor, and we apprehend nothing has more frequently been declared by this Court than that a motion for new trial is an appeal to the discretion of the lower Court, with the exercise of which the Appellate Court will not interfere except in cases of wanton abuse. More especially will the Court decline to supervise the discretion of the lower Court where the evidence on which its findings or judgment in the absence of findings rests is at all of a conflicting character, or there is any evidence tending to prove the facts found; and this for the obvious reason that the lower Court before whom the cause is tried has the best means of forming a correct judgment of the degree of credibility to be given to the evidence. *(,Satterlee*v. *Bliss*et al., 86 Cal. 615; *Bitter*v. *Stock,*12 Cal. 402; *Stevens*v. *Irwin,*15 Cal. 504; *Wilcoxson*v. *Burton,*27 Cal. 232.

Rhodes, C-. J.

delivered the opinion of the Court, Temple, J., Crooeett, J., and Wallace, J., concurring:

The complaint states, in the same count, a cause of action for a forcible entry and detainer, such as is mentioned in the first section of the Fóreible Entry Act of 1866 (Stats. 1865-6, p. 768) ; and also a cause of action, for an entry upon the premises during the absence of the plaintiff, and a refusal to surrender the same after a demand made therefor, etc., which is declared by the third section of that Act to constitute a forcible detainer. As no demurrer was interposed for the misjoinder, the objection is waived.

The defendants, in their points, do not insist on their objection to the judgment roll, which was admitted in evidence, and therefore it will not now be considered.

The remaining grounds of their motion for a new trial will be noticed in the order in which they were presented. The first specification of the insufficiency of the evidence to sustain the implied findings — no finding having been filed— is, in substance, that the evidence fails to show that the plaintiff was in possession of the premises at the time of the entry of the defendants. The evidence on this point is *488conflicting, and, therefore, tbe finding will not be disturbed. Tbe specification tbat tbe evidence failed to sbow tbat tbe *plaintiff*was in possession at tbe commencement of tbe action, if read literally, is fully borne out by tbe record ; but it is difficult to appreciate tbe merit of tbe point; for bad tbe evidence shown tbat tbe plaintiff was in possession, be certainly would bave failed in tbe action.

Tbe second specification is tbat tbe evidence fails to sbow a forcible or unlawful entry by tbe defendants. Tbe plaintiff having alleged an entry during bis absence, and a demand for tbe surrender of tbe premises, as provided for in tbe third section of tbe Act, it was not incumbent onbim to prove an entry which was in fact forcible. Tbe entry proven was clearly unlawful, in view of tbe evidence already alluded to, tending to sbow tbe plaintiff’s possession at tbe time of tbe defendant’s entry,

Tbe third specification is, tbat there was no evidence of tbe forcible or unlawful bolding of tbe possession by tbe defendants. Tbe answer to tbe second specification is applicable, also, to this. Tbe defendants were shown to be in possession of tbe premises, and their entry having been unlawful, and nothing thereafter having occurred to give them tbe right of possession as-against tbe plaintiff, their bolding was unlawful.

Tbe fourth and last specification is, “ tbat tbe findings and judgment should bave been for tbe defendants instead of for tbe plaintiff.” This is not a specification in any sense, and is utterly useless as a ground of tbe motion for a new 'trial in any case whatsoever.

Judgment affirmed-.