Opinion of the Court Niles, J.

below to sustain defendants' demurrer to certain counts of the complaint. Upon filing the remittitur in that Court, an order was obtained for a writ to restore the defendants to the possession of the property.

The order was one proper to be made. Upon a reversal of a judgment in the appellate Court it is right that the appellant be placed as nearly as may be, without interfering with the acquired rights of third parties, in the same position which he occupied when the erroneous judgment was rendered. (Reynolds v. Harris, 14 Cal. 679.)

This was substantially the effect of the order in question. 2. The Court did not err in refusing to allow the plaintiffs to file their proposed amended complaint. There was an evident misjoinder of causes of action. The first five counts were framed under the Act of April 2d, 1866, concerning forcible entries and unlawful detainers. The sixth was framed under the Act of April 27th, 1863, commonly known as the landlord and tenant Act, and charged an unlawful holding over by the defendants as tenants of plaintiffs, after expiration of the lease and notice to quit. Causes of action under these several Acts are distinct and different, both as regards the ground of action and the mode of procedure. In the one case there must be proof of the forcible aking or withholding of possession, and the force is the gist of the action. There is nothing in the nature of a contract between the parties to the proceeding. In the other the element of force is entirely wanting. The entry was lawful and the detention peaceable. The statute merely provides a summary remedy for the breach of a special class of contracts. The incompatibility of the two causes of action is obvious when we consider that a landlord who should make a forcible entry upon his own land after the expiration of his tenant's term, and due notice to quit, would be liable to an action at the suit of the tenant under the forcible entry Act of 1866, while the same facts, without the forcible entry,

Opinion of the Court-Niles, J.

would give the landlord an action against the tenant, and restitution of the premises, under the landlord and tenant Act of 1863.

Moreover, from an inspection of the two Acts, it is evident that the modes of procedure provided are different and inconsistent in several important respects.

3. After a careful examination of the eighty-eight pages of plaintiff's testimony contained in the transcript, we do not see how the Court could have denied the nonsuit moved by the defendants. From the 29th till the 31st of December, 1869, Susenbeth held possession of the premises as the agent of the plaintiffs, and by virtue of the power of attorney from them. The term of Susenbeth's lease from plaintiffs commenced upon the 1st day of January, 1870. It was the evident intention of Susenbeth and the plaintiffs, that the former should hold the premises for the latter until the commencement of the term, and should thereafter hold it in his own right as tenant under the lease. On the morning of the first of January, if Susenbeth was still in possession, the contract of lease was consummated, and he then became. tenant in possession under it. No other or more formal entry could be required.

We find no proof of any act of the defendants prior to that date amounting to an ouster, much less a forcible ouster of the plaintiff or his agent. The entry of the defendants Gurnee and others on the evening of the thirty-first of December was peaceable and after the manner of ordinary travelers entering a public hotel, and was made without objection on the part of Susenbeth. The assertion by Gurnee, later in the evening, of his title to the property and possession of it, was unaccompanied by any violence or threats of violence. There was not even any talk of the expulsion of Susenbeth from the premises, and he appears to have occupied them thereafter in the same manner in which he had previously occupied them. We can see noth

ing in the occurrences of that evening to constitute either a forcible entry or a forcible holding within the meaning of the first two sections of the Forcible Entry Act, under which the first two counts of the complaint were made. Nor was there any evidence to sustain the third count, which was framed under the third section of the Act; for the original entry was not unlawful, and if it had been unlawful, the right to the possession of the premises had passed from the plaintiffs when the demand for surrender was made.

The matters alleged in the fourth count do not constitute an independent cause of action. The fraudulent acts which may be alleged under the provisions of the fifth section of the Act go to the enhancement of damages merely, when a case is made out under one of the first three sections.

It was claimed by appellant that the forcible entry by defendants on the second of January into the room occupied by Susenbeth was an injury to the possession of plaintiffs, and that at least a cause of action was made out upon the fifth count of the complaint, which charged an entry by force upon this separate room. The fact of a forcible entry by the defendants at that time is not disputed, and the only question is, whether this room was then in the possession of Susenbeth as the lessee or as the agent of the plaintiffs. The lease to Susenbeth was by its terms a demise of the entire premises. It contains, however, several covenants upon the part of the lessee, and among others the following: "That said J. S. Polack and his wife, as further consideration of this lease, shall retain their room adjoining the parlor and occupy the same, and board at said hotel as long as they desire, without any charge, excepting wines, beer, and spirits."

It would seem that the room mentioned in this covenant was one which had been selected and occupied by plaintiff during the term of Shafer, the lessee preceding Susenbeth, under the provision in his lease giving them "the right to

Points decided.

name and occupy a room and obtain board at said Geyser Hotel for such time as they may desire, and without charges," etc. The clause in Susenbeth's lease, above quoted, merely gave to the plaintiffs the right to occupy the room upon the same terms as before. It was a mere covenant upon the part of the lessee, but not a reservation of a specific portion of the premises from the operation of the lease. The general possession of the entire property passed to Susenbeth under his lease, and the forcible entry upon the second of January was an injury of which he alone could complain.

We find no substantial error in the rulings of the Court in the admission or rejection of evidence.

Judgment and order affirmed.

Mr. Chief Justice WALLACE did not express an opinion.

[No. 3,505.]

JOHN C. BOWERS v. CHEROKEE BOB ET AL.

WRIT TO BE RESTORED TO POSSESSION IN FORCIBLE ENTRY.- If the plaintiff obtains judgment in an action of forcible entry and detainer, but does not obtain possession of the property, and a writ of restitution is not issued, and the judgment is afterwards reversed and the action dismissed, and during the pendency of the action third parties obtain possession of the property by collusion with a servant of the defendant, the defendant is not entitled to a writ to be restored to possessoin as against these third parties.

IDEM. A defendant in forcible entry, against whom judgment is rendered, which is afterwards reversed, but who does not lose possession of the property under or through the judgment, is not entitled to be restored to possession as against third parties who have ousted him during the pendency of the action.

RENEWAL OF MOTION ONCE DENIED. A motion made, in the usual course of practice, which has once been denied, may be renewed by leave of the Court; and, unless there is an abuse of discretion in granting this leave, the order will not be disturbed by the Supreme Court.

APPEAL from the County Court, City and County of San Francisco.

Argument for Appellant.

The original case of Bowers v. Cherokee Bob, out of which this appeal grew, is reported in 45 Cal. 496. The defendant in that case (Knight) was the appellant here; and Blumenberg, Mendheim, Waugenheim, and Knack were the respondents. The plaintiff Bowers in the original case made an affidavit, used on the hearing of the motion in this case, which tended to show that during the pendency of the motion for a new trial the defendants consented that a writ of restitution should issue, and that he obtained one and placed it in the hands of the Sheriff, but that before the Sheriff could execute it the employés of defendant Knight sold out the possession of the property to Blumenberg, and that the writ was not served. The action was dismissed in the County Court, March 20th, 1871. The plaintiff Bowers was not a party to the motion in this case, nor to this appeal. The other facts are stated in the opinion.

B. S. Brooks, for Appellant.

This Court has repeatedly held that, after the adjournment of the term, the Court loses all control over cases decided, unless its jurisdiction is saved by some motion or proceeding at the time, except in the single case provided by statute, where the summons had not been served, in which the party is allowed six months to move to set the judgment aside. (Suydam v. Pitcher, 4 Cal. 280; Shaw v. McGregor, 8 Cal. 521; Baldwin v. Kramer, 2 Cal. 582; Bell v. Thompson, 19 Cal. 706.)

The reason of this rule is obvious. There must be some finality in legal proceedings, and a period beyond which they cannot extend. The safety and tranquillity of parties require that their interests should not be constantly suspended and their repose liable to be disturbed at any moment by the discretion of the Court. (Carpentier v. Hart, 5 Cal. 407.) Having held, in repeated cases, that inferior Courts cannot grant a new trial, or interfere with their judgments or

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