Norblett v. Farwell

Rhodes, J., delivered the opinion of the Court : The plaintiff sues for the restitution of premises, which he had leased to the defendant, and which the latter held over after the expiration of the term, and after demand for the surrender of the possession. The action was commenced under the Forcible Entry and Detainer Act of April 2, 1866 (Stats. 1865-6, p. 768), and it is contended that as it is brought for an unlawful detainer—but not for a forcible entry or a forcible detainer—it is governed by the provisions of the Act of April 27, 1863 (Stats. 1863, p. 652). The Act of 1863 adopts the Practice Act, so far as applicable (except as therein otherwise provided), and, among others, the provision in respect to the summons; while the Act of 1866 makes special provision for the summons. And as the summons in this case required the defendant to appear and answer upon a specified day, which was seven days from the day of its date, the point is that the summons was not sufficient to give the Court jurisdiction of the defendant. It is not denied, on the other side, that the summons would be insufficient under the Act of 1863, but it is contended that the Act of 1866 includes unlawful detainer as well as forcible detainer, and that the latter Act, completely superseded the former. The words “forcible entry and detainer,” as employed in Section 8, Article "VI, of the Constitution, were under consideration in Caulfield v. Stevens (28 Cal. 118), and it was held that they were used in a generic sense, and that they embraced unlawful detainer, as well as forcible entry and forcible detainer. It was not meant nor intimated, that unlawful detainer and forcible detainer were one and the same thing. They have always remained distinct causes of action, though the remedy in each might be nearly or quite the same. In the Act of 1863 one remedy was provided for all of the three cases, but in 1866, either because that remedy was not sufficiently summary for forcible entry and forcible detainer, or for some 158 other reason, the Legislature provided a distinct remedy for these cases, wholly omitting unlawful detainers, and repealed “all Acts or parts of Acts inconsistent with or repugnant to ” the provisions of that Act. It is contended that, as the title of the Act is, “An Act concerning forcible entries and unlawful detainers,” by a reasonable construction, the Act, with the aid of the title, may be held to include unlawful detainers. There is not one word in the Act that points to unlawful detainers, and it would be no more justifiable to make use of the title to incorporate in the body of the Act unlawful detainers, than to strike from the Act forcible detainers, because they are not mentioned in the title. The Act of 1863 remains in force, so far as it relates to unlawful detainers, though repealed so far as it relates to forcible entries and forcible detainers; and it follows that, in unlawful detainer, the process by which the Court obtains jurisdiction of the defendant, must be issued in accordance with the provisions of the Practice Act. The record does not show a waiver of summons by appearance; on the contrary, it appears that the judgment was rendered upon a default, for want of an appearance, entered on the return day of the summons. Judgment reversed.