Dutton v. Warschauer
California Supreme Court
Appeal from the Fourth Judicial District. The defendant was, at the time of the commencement of the action, the tenant of Mrs. Wheelock. He notified her of the action, and she appeared by counsel in the lower Court, and conducted the defense, but without being substituted as defendant, or becoming a party to the record. The judgment being for plaintiff, an appeal was taken at the instance of Mrs. Wheelock, but in the name of Warschauer, the defendant.
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Appeal from the Fourth Judicial District. The defendant was, at the time of the commencement of the action, the tenant of Mrs. Wheelock. He notified her of the action, and she appeared by counsel in the lower Court, and conducted the defense, but without being substituted as defendant, or becoming a party to the record. The judgment being for plaintiff, an appeal was taken at the instance of Mrs. Wheelock, but in the name of Warschauer, the defendant. Before the hearing, Warschauer filed a release of all errors, on which respondent moved to dismiss the appeal. The motion was argued and…
1Opinion of the CourtField, C. J.
Cope, J. and Norton, J. concurring specially.
The action of ejectment must be brought against the actual occupant of the premises, if there be one. (Garner v. Marshall, 9 Cal. 268.) If such occupant be a tenant of another, the landlord may appear and defend in his name, or be substituted in his place. But such appearance or substitution should be entered of record, and only allowed upon notice to the parties. After it is once properly made, the tenant cannot interfere with any subsequent proceedings to the prejudice of the landlord. In the present case the defense was made by the landlord at…
2Cases cited13 opinions
- McMillan v. RichardsCalifornia Supreme Court · 1858
- Goodenow v. EwerCalifornia Supreme Court · 1860
- Jackson ex dem. Norton v. WillardNew York Supreme Court · 1809
- Astor v. HoytCourt for the Trial of Impeachments and Correction of Errors · 1830
- Lestrade v. BarthCalifornia Supreme Court · 1862
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3Cited by47 opinions
- Bank of Italy National Trust & Savings Ass'n v. BentleyCalifornia Supreme Court · 1933
- Grattan v. WigginsCalifornia Supreme Court · 1863
- Spect v. SpectCalifornia Supreme Court · 1891
- Kinnison v. Guaranty Liquidating Corp.California Supreme Court · 1941
- Williams v. Santa Clara Mining Ass'n of Balt.California Supreme Court · 1884
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