HENRY HAMMEL and ANDREW H. DENKER v. GEORGE ZOBELEIN, 51 Cal. 532

By the Court: This is an action brought for an alleged constructive forcible detainer, under subdivision 2 of

section 1160 of the Code of Civil Procedure. The court below found that, at the time of the entry of defendant, the premises were in the possession of tenants of the plaintiffs. The landlord cannot recover in this action, relying on the possession of his tenants. It is claimed, however, that the answer admits the possession of the plaintiffs; inasmuch as it contains an averment that, at the time of the entry, two servants or employees of the plaintiffs were present, and that said servants were, at the time, residing upon a part of the premises.

But the answer also alleges that neither of the plaintiffs ever resided upon the premises or any part thereof. The court did not find that the plaintiffs ever were in the actual personal occupancy of the premises; and if their occupancy was solely through their servants, plaintiffs cannot claim that they were absent temporarily from the premises, within the meaning of the statute; and unless they were so absent, they cannot recover in this action. Judgment and order reversed, and cause remanded for a new trial.