38 Cal. 423, Webster v. Cook

Citation:38 Cal. 423
Opinion Judge:RHODES, Judge
Party Name:CHARLES F. WEBSTER, Appellant, v. ELISHA COOK, Respondent
Attorney:Leonard S. Clark, for Appellant. Elisha Cook, in pro. per., for Respondent.
Judge Panel:JUDGES: Rhodes, J., delivered the opinion of the Court.
Case Date:October 01, 1869
Court:Supreme Court of California
 
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Page 423

38 Cal. 423

CHARLES F. WEBSTER, Appellant,

v.

ELISHA COOK, Respondent

Supreme Court of California

October, 1869

Appeal from the District Court of the Fourth District, City and County of San Francisco.

The defendant sets forth the following causes of demurrer to the complaint:

First --The complaint does not set forth facts sufficient to constitute a cause of action.

Second --The complaint alleges that rentals paid and agreed to be paid was $ 150, payable monthly, thus averring that such rents had been paid, as well as agreed to be paid.

Third --There is no allegation that any rent is due by the defendant under his lease from Cowing; the only allegation is the value of the premises, and what was to be paid.

The order sustaining the demurrer was entered on the 27th of April, 1867, and final judgment for defendant was rendered on the 22d day of August, 1868.

On the 2d day of November, 1868, notice of appeal from the judgment was given and filed.

COUNSEL:

Leonard S. Clark, for Appellant.

Elisha Cook, in pro. per., for Respondent.

JUDGES: Rhodes, J., delivered the opinion of the Court.

OPINION

RHODES, Judge

Page 424

The time for an appeal from a judgment commences to run from the rendition of the judgment, and not from the order sustaining the demurrer to the complaint. The appeal in this case was taken within a year from the time of the rendition of the judgment, and was within time. (Practice Act, Sec. 336.)

It is provided by Section 236 of the Practice Act, that " the purchaser, from the time of the sale until a redemption, * * * shall be entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof," and the question is, whether

Page 425

the complaint states facts sufficient to entitle him to a recovery under this section. The defect specified by the defendant is, that the complaint does not state that any sum was due to the plaintiff for rent. One of the allegations of the complaint is as follows: " And plaintiff says that he is informed and believes, and therefore alleges, that the sums of money paid, and agreed to be paid, by the said defendant to said Cowing [one of the execution defendants], as the rental of said premises, while said defendant so held and occupied the same from said Cowing as his...

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