(185 P.)

(43 Cal. App. 405)
EDWARDS v. BODKIN. (Civ. 2826.)

(District Court of Appeal, Second District, Division 1, California. Oct. 2, 1919.)

[1] There is no evidence to show that defendant's entry upon the premises on the 17th day of December, 1912, was accompanied by any kind of violence or circumstance of terror, or that the defendant turned out by force, threats, or menacing conduct the party 1. FORCIBLE ENTRY AND DETAINER 4-EN-in possession. It follows that there was no forcible entry.

TRY WITHOUT FORCE OR THREATS.

One was not guilty of forcible entry under Code Civ. Proc. § 1159, where his entry was not accompanied by any kind of violence or circumstance of terror, and where he did not turn out party in possession by force, threats, or menacing conduct.

2. FORCIBLE ENTRY AND DETAINER 29(4) EVIDENCE INSUFFICIENT TO SHOW DEMAND.

In forcible detainer action, evidence held insufficient to support finding of a demand upon defendant for surrender of premises required by Code Civ. Proc. § 1160, subd. 2.

At the trial evidence was produced showing that the defendant had also entered upon the land on the 23d day of November, 1912, and

remained there for a few hours. The evidence does not show where the plaintiff was at the time of such entry, but it does show that a short time thereafter, and on the same day, the plaintiff appeared on the premises accompanied by a constable, by whom the defendant was arrested. Defendant's occupancy at that time continued for only a few hours, and he did not enter again until the 30(1) 17th day of December following. We have NECESSARY TO carefully examined the evidence showing the circumstances of said entry of November 23, 1912, and we are satisfied that it is not sufficient to support the claim of forcible entry at

3. FORCIBLE ENTRY AND DETAINER RECOVERY OF POSSESSION AWARD OF DAMAGES.

Damages for forcible entry are not awarded unless the plaintiff recovers the possession of the premises in controversy.

that time.

[2] If this action can be maintained at all, Appeal from Superior Court, Riverside it must be as an action of forcible detainer County; Hugh H. Craig, Judge.

Action by William B. Edwards against Patrick H. Bodkin. Judgment for plaintiff, and defendant appeals. Reversed.

under subdivision 2 of section 1160 of the Code of Civil Procedure. According to that section, a person is guilty of forcible detainer who, "during the absence of the occupant of any lands, unlawfully enters upon real propDuke Stone and H. C. Wesley, both of Los erty, and who, after demand made for the Angeles, for appellant.

surrender thereof for the period of five days,

William B. Edwards and Sarau & Thomp- refuses to surrender the same to such former son, of Riverside, for respondent.

occupant." If it be granted that defendant's entry under the circumstances shown by the CONREY, P. J.. The complaint stated a evidence herein was an unlawful entry made cause of action in forcible detainer. The during the absence of the occupant, neverthetrial court in its decision of the case found less the action must fail because there is no that on or about December 17, 1912, the de- evidence sufficient to support the finding of fendant unlawfully and forcibly entered upon a demand made for the surrender of those the described premises. The complaint al-premises. The plaintiff testified that on the leged an unlawful entry during the absence of the plaintiff, but did not allege a forcible entry. The complaint also alleged, and the court found it to be a fact, that on said 17th day of December the plaintiff made demand in writing upon the defendant to deliver to the plaintiff the possession of said premises, and that the defendant refused for a period of five days thereafter to surrender possession thereof to the plaintiff; the court did not find that the entry was made during the absence of the plaintiff, but that fact was not denied. Forcible entry is defined as follows (Code Civ. Proc., § 1159):

evening of December 17, 1912, he gave to the defendant a copy of “a notice." Neither the notice nor any copy thereof was produced to the court, and the plaintiff did not testify to the contents of the so-called notice. Instead of such evidence, the plaintiff called as his own witness the defendant, who testified that on the evening of December 17, 1912, the plaintiff served on him "some kind of a notice." Being asked to state the contents of the notice, he replied:

"The notice said that he wanted me to leave there, and not contaminate the vicinity with my presence. That was the words."

This is all of the evidence of any notice served by the plaintiff upon the defendant. So far as appears from this evidence, the prop

erty in question was not mentioned in the notice, nor was any demand made that the defendant surrender the same.

During the pendency of this action and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

prior to the trial thereof defendant, Bodkin, | jection, respondents waived the matter of sigas plaintiff in an action of ejectment against nature, and cannot deny the validity of the Edwards, obtained a judgment against Ed- notices.

wards for possession of the property describ-3. NEW TRIAL 137—LACK OF SIGNATURE TO ed in the complaint in this action. At the NOTICES OF MOTION NOT JURISDICTIONAL. time of trial of this action that judgment Though the law requires that notices of had become final, and the same was intro-motion for new trial be signed, failure to obduced in evidence herein by the defendant, serve the requirement does not establish a deBodkin. It was therein determined. that at fective jurisdiction any more than in the case all times after June 1, 1912, Bodkin was the of a complaint filed without signature, which owner and entitled to possession of the land does not make the pleading a nullity. described, which was the same land described 4. APPEAL AND ERROR 345(1)-TIME FOR In the complaint in this action. Presumably by reason of that judgment, the court in this present action refused to award judgment for possession in favor of plaintiff, Edwards, but granted judgment for damages, as for a period of forcible detainer, down to the time of entry of the judgment in the ejectment case. If the court was right in refusing to award possession to the plaintiff, it is doubtful whether damages could be separately granted.

[3] In Brawley v. Risdon Iron Works, 38 Cal. 676, the court said that in an action of forcible entry or forcible detainer the substance of the recovery, when the plaintiff is successful in the action, is the possesBion of the premises. "Damages for the forcible entry are not awarded, unless the plaintiff recovers the possession of the premises in controversy."

The judgment is reversed.

We concur: SHAW, J.; JAMES, J.

(43 Cal. App. 568)

LEAKE v. CITY OF VENICE et al. ALLES et al. v. SAME. BRAUN, BRYANT & AUSTIN v. SAME. (Civ. 3108.)

(District Court of Appeal, Second District, Division 1. California. Oct. 13, 1919.)

1. APPEAL AND ERROR 353-EXTENSION OF TIME ONLY BY PENDENCY OF NEW TRIAL PRO

CEEDINGS.

Under Code Civ. Proc. § 939, the 60-day limit of time for appealing from a judgment cannot be extended except by the pendency of the proceedings on motion for new trial.

2. NEW TRIAL 139-WAIVER OF DEFECT IN SIGNATURE OF NOTICES OF MOTION.

Where appellants and their single counsel requested another attorney to become an attorney of record for appellants, no formal substitution in conformity with Code Civ. Proc. 284, being made, and authorized him to sign notices of motion for new trial, and when he came to do so such other attorney signed the notices in his own name alone, such notices

were in fact the intended act of appellants and their first counsel, the physical fact of signature was merely a mode of identification for the benefit of respondents, and, having received copies and acknowledged receipt without ob

APPEALING AS AFFECTED BY DEFECTIVE NO-
TICE OF MOTION FOR NEW TRIAL.

A notice of motion for new trial, with defect in signature waived by the parties, suspends running of limitations as affecting appeal.

Appeals from Superior Court, Los Angeles County; Russ Avery, Judge.

Actions by E. O. Leake, by Fred L. Alles and others, and by Braun, Bryant & Austin against the City of Venice and others. From the judgments, defendants other than the City appeal. On motion to dismiss. Motion denied.

C. E. McDowell and E. B. Coil, both of Los Angeles, for appellants.

Goudge, Robinson & Hughes and E. 0. Leake, all of Los Angeles, for respondents.

CONREY, P. J. [1] Respondents move to dismiss the appeals from the judgments herein, on the ground that no appeal was taken until more than 60 days after entry of judgment in each of the three cases included in the consolidated record on appeal; it being contended by respondents that no proceeding on motion for new trial was pending at any time in either of said actions.

Under section 939, Code of Civil Procedure, the 60-day limit of time for appealing from a judgment cannot be extended, except by the pendency of proceedings on motion for a new trial. The records on which the motion to dismiss is based are alike in the several

cases.

At and before the time of entry of the judgments, C. E. McDowell was the sole attorney for appellants. Within the time required by law, a notice of intention to move for a new trial was, in each case, served and filed. These were sufficient in all respects, unless they were void by reason of the fact that they were signed by E. B. Coil as attorney for defendants, and not by C. E. McDowell. As shown by affidavits contained in the bill of exceptions, Coil had been requested, by McDowell and by the defendants, to become an attorney of record for defendants in the action, together with McDowell, and had been authorized on behalf of both McDowell and the defendants to sign the notices. By an oversight, due only to inadvertence, Coil omitted to use the name of McDowell in the

(185 P.)

notices, and signed them by his own name reserved in the lease are liable, upon abandonalone. At that time no formal substitution ment of possession of premises before expiraof attorneys, conforming to the requirements tion of term, for the rent in the same manner of the Code of Civil Procedure, § 284, had and to the same extent as if they had been been made. When those notices were served original lessees, such assignees having two sets on the attorneys of the plaintiffs, they in- landlord and tenant based upon privity of esof obligation, those arising from relation of dorsed thereon acknowledgments of receipt tate, and the others due to privity of contract of copies, and made no objection to the no- by the terms of which the obligation of astices at that time. When the motions for signees of the lease is to be measured. new trials were about to be heard by the court (that being long after the time within 4. LANDLORD AND TENANT which notice of intention to move for a new trial could have been given), the plaintiffs for the first time suggested that the notices of intention were insufficient because not signed by the attorney of record.

[2-4] So far as respondents are concerned,

208(2) - CON

SIDERATION FOR LESSEE'S ASSIGNEE'S COVE-
NANT TO PAY RENT.

rent reserved in the lease is based upon the
Covenant of assignee of lease to pay the
consideration of the transfer of the lease.
225-ACTION ON

5. LANDLORD AND TENANT

COVENANT TO PAY RENT BY ASSIGNEE OF
LEASE.

Under Civ. Code, § 1559, lessor may bring covenant to pay the rent reserved in the lease; action against assignee of lease on assignee's such covenant having been made for benefit of lessor.

-

RE

the situation is not different from that which
would have existed if McDowell himself had
prepared and served the notices, but had in-
advertently omitted to sign his name thereto.
For the notices were in fact the intended act
of McDowell and of his clients. This being
so, the physical fact of signature on the
paper was merely a mode of identification, 6. LANDLORD AND TENANT 195(1) ·
required for the benefit of respondents,
which they might waive. Having received
the copies and given acknowledgment of re
ceipt thereof, without seasonable objection,
respondents should not later be heard to deny
the validity of notices so given. Livermore
v. Webb, 56 Cal. 489. While the law requires
that such notices be signed, failure to observe
this requirement does not establish a defect
of jurisdiction, any more than in the case of
a complaint filed without signature. But the
omission of the signature to a complaint does
not make the pleading a nullity. Canadian
Bank v. Leale, 14 Cal. App. 307, 111 Pac. 759.
The motion to dismiss is denied.

LEASE OF TENANT'S LIABILITY BY POSSES-
SION OF LANDLORD.

who had covenanted to pay the rent reserved in In lessor's action against assignees of lease lease, but had repudiated lease and abandoned premises before expiration of term, and the landlord unsuccessfully tried to obtain another tenant, the principle that landlord's unqualified possession of premises releases tenants from further liability upon theory of rescission was not applicable, in absence of allegation or finding that lessor had taken unqualified possession, or any possession.

Appeal from Superior Court, Los Angeles County; John M. York, Judge.

Action by Charles W. Chase against William Oehlke, F. D. Griffith, Ella Swickard, and others. Judgment for plaintiff against defendants Griffith and Swickard, and they appeal. Affirmed.

E. A. Miller, of Los Angeles, for appellants.

Charles W. Chase, of Los Angeles, in pro.

per.

SHAW, J. [1] This action to recover rent under the terms of a written lease and covenants of the assignments thereof arose out of the following facts: On February 1, 1913, plaintiff executed to one William Oehlke a lease to certain premises for the term of two years at a specified rental. Oehlke assigned the lease to J. F. Petell, by whom it was assigned to F. D. Griffith, who in turn assigned the same to defendant Ella Swickard, and in each case the assignee agreed in

3. LANDLORD AND TENANT 195(1), 208(2) writing to carry out and fulfill the terms of LIABILITY OF ASSIGNEE FOR RENT. Assignees of lease who by express terms in writing covenant and agree to pay the rent

the lease in the place and stead of his assignor, all of which facts were set forth in the complaint, which also alleged that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

rent reserved in said lease was fully paid up [ Landlord and Tenant, § 158; Civ. Code, to and including the month of March, 1914, 1559. Appellants having upon sufficient conat which time defendant Swickard, as the sideration assumed and agreed to pay the last assignee of the lease, was in possession rent, their obligation is identical with that of the premises, and "that about the latter of the original lessee upon his express cove part of the month of March, A. D. 1914, the nants so to do, and when they, as alleged and defendant Swickard abandoned and left said found, repudiated the lease and abandoned demised premises, and removed therefrom the premises, the plaintiff was entitled to and repudiated said lease, and refused then stand upon the terms of the 'contract made and always thereafter to be bound by the with the lessee and his assigns for the les same, and refused to be bound by any of the sor's benefit, and sue thereon to recover the terms thereof, all of which was without the rent which they had agreed to pay, in the consent and against the wishes of the plain- same manner and to the same extent as tiff," who did not at any time terminate said though they had been the original obligors lease nor exercise any right or option to ter- under the terms of the lease. The error of minate the same, which allegations, since not appellants' counsel is due to the fact that he denied, must be deemed, as found by the assumes the action to be based upon the recourt, to be true. lation of landlord and tenant, rather than upon express covenants.

(185 P.)

Where mortgage gave mortgagee right to release part of property without affecting her right against any one liable for indebtedness secured, or her right to look to remainder of mortgaged premises as security for full pay ment, held, that mortgagee, though having notice of several successive alienations of parts of mortgaged premises, could grant partial release of mortgaged premises for less than market value of property released and enforce balance of claim against remainder of property. 2. MORTGAGES 310 PROVISION GIVING RIGHT TO RELEASE PART OF PROPERTY VALID. Provision of mortgage, giving mortgagee right to release part of property without affecting her right against any one personally liable for the indebtedness, or her right to look to remainder of mortgaged premises as security for full payment of indebtedness, is not contrary to public policy.

consideration of the sum of $350, released
the lots conveyed to Collins and by him sub-
findings the court places a value of $2,000
In its
sequently transferred to Howard.
upon these lots.

The various instruments
referred to were all duly recorded.
The mortgage contained the following
provision:

"The mortgagor agrees that the mortgagee may at any time without notice release portions of said mortgaged premises from the lien of liability of any person for the payment of said this mortgage without affecting the personal indebtedness, or the lien of this mortgage upon the full amount of said indebtedness then rethe remainder of the mortgaged premises for maining unpaid."

The court in its decree decided that this

provision of the mortgage was invalid, and in ordering judgment for the plaintiff directed as a credit upon the amount claimed the sum of $2,000, which the court found to be the value of that part of the mortgaged premises released by her to Howard. The plaintiff appeals from the judgment.

[1] As we view the record, there is only one important point in the case. The appellant contends that under the provision of the

Appeal from Superior Court, San Bernar- mortgage quoted she had a right to grant the dino County; J. W. Curtis, Judge.

Action by Mary O. Thompson against John R. Thomas and others. From the judgment rendered, plaintiff appeals. Reversed and remanded.

partial release of the mortgaged premises to Howard for less than the market value of the property so released and to hold the remainder for the balance. Generally this could not be done, for the rule appears to be that a mortgagee, with notice of several successive

Hahn & Hahn and C. E. Musick, all of alienations of parts of the mortgaged premisPasadena, for appellant.

es primarily liable for the payment of the

Frank C. Dunham and Geo. W. Carey, of debt, cannot be permitted to charge other Los Angeles, for respondents.

KERRIGAN, J. This is an appeal from a judgment in an action to foreclose a mortgage. The facts are as follows:

portions of the premises with the payment of the mortgage debt without deducting therefrom the market value of the part released. Woodward v. Brown, 119 Cal. 283, 51 Pac. 2, 542, 63 Am. St. Rep. 108; Irvine v. On August 13, 1913, a note, secured by the Perry, 119 Cal. 352, 51 Pac. 544, 949; Blood mortgage in question, was executed by the v. Munn, 155 Cal. 228, 100 Pac. 694; Humdefendant Thomas to the plaintiff in consid-boldt Savings Bank v. McCleverty, 161 Cal. eration of a loan of $4,000; the mortgage 285, 119 Pac. 82, 2 Jones on Mortgages (7th covering a number of lots of land situate in Ed.) § 722 et seq.; 27 Cyc. 1372. In other San Bernardino county. On March 7, 1914, words, under this principle of equity the Thomas executed and delivered to Harold P. plaintiff, having knowledge of the several Collins a grant deed covering a portion of conveyances of portions of the mortgaged the mortgaged property. This deed was tak-premises made subsequent to the giving of en subject to the mortgage, and also contain- the mortgage, and of their terms, could not ed a provision that the grantee agreed to pay release the parts thereof conveyed to Howthe same. On September 12, 1914, Thomas ard for less than their reasonable value and conveyed the remaining lots, except three enforce the balance of her claim against the thereof, to defendant Callie L. McDowell, remainder of the land. But the provision in the deed reciting that the lots were sub- the mortgage upon which this controversy ject to the mortgage. On September 23, turns appears to have been inserted therein 1914, Harold P. Collins by deed conveyed the for the express purpose of avoiding the approperty acquired by him above mentioned plication of this equitable doctrine, and we to R. F. Howard, this deed also being made perceive no reason why the provision should subject to the mortgage. On July 7, 1915, not be given the effect intended. Any perthe mortgagee, with actual notice of the son dealing with the mortgaged property did aforesaid conveyances and of their terms, in so charged with knowledge of the terms of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes