MILLICH v. GUTTERNICH

MILLICH v. GUTTERNICH. No. 8169; July 24, 1884. 4 Pac. 411. Judgment—Findings.—Judgment Held not Sustained by the findings. Evidence—Eight to Contradict Witness.—Where Evidence of plaintiff is material, it is competent for defendant to contradict him, and refusal to allow him to do so is ground for reversal. APPEAL from the Superior Court of Santa Cruz County. This was an action under the forcible entry and detainer law to recover the possession of certain premises and damages for the withholding thereof. Plaintiff alleged a lease by him to defendant, which lease had expired, and that since the expiration of the lease defendant refused, though duly notified, to deliver possession of the premises to plaintiff. F. J. McCann for appellant; Goldsby & Cloud for respondent. [MAJORITY — By the COURT.] By the COURT. This action was properly brought under section 1161 of the Code of Civil Procedure, but the judgment of the court below must be reversed for errors in the proceedings. In the first place, the findings do not support the judgment. No such lease as that set forth in the complaint is found by the court; but, on the contrary, a contract for a lease is found essentially different from the terms of the lease which is declared on, and is the foundation of plaintiff’s action. There was also error in the ruling of the court found in the fourth bill of exceptions. The plaintiff testified that he was not in the city of Santa Cruz on the twenty-third day of January, 1879. This was material evidence in the case, and it was competent for the defendant to contradict him on this point. For these errors the judgment must be reversed and the cause remanded for a new trial. So ordered.