In Brotherton v. Hart, 11 Cal. 405, it was held that " where a party stipulates that a motion made for a new trial should be denied, he cannot questionthe correctness of the order in this Court." And so it was held in 22 Cal. 456, that an appeal did not lie from a voluntary nonsuit. The question of jurisdiction of the County Court is decided in Caulfield v. Stevens, 28 Cal. 118.
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
By the Court, Crockett, J., on petition for rehearing:
In the petition for rehearing, the plaintiff's counsel assumes that we have fallen into an error of fact in respect to the date of the plaintiff's demand to be let into the possession. It is true our opinion, as published in the newspapers, fixes the date in April, 1866, as assumed by the counsel; but this was the result of a typographical error, and on reference to the original opinion on file in the case it will be found that we fix the date correctly as in September, 1866. But there is a conflict in the evidence on the point whether the defendants had taken the actual possession of the room in contest at the date of the demand in September, 1866. The defendant Pearce testifies that on the 24th of August, 1866, he occupied a room on the south of the room in dispute, but there was no communication between them, and never had been; that he continued to occupy the room on the south until the last days of September, 1866, and until some days after the date of the demand, and that he was not, in any sense, using or occupying the room sued for at the times the notices and demands were made and served on him.
He further testified that he never knew the defendant McKay to occupy the room an hour since he had known him, though he had known him ever since the house was built. On the other hand, the plaintiff put in testimony tending to show that Pearce exercised acts of ownership over the room on the evening of the twenty-fourth of August and afterward up to the first of September. It was for the jury to judge of the credibility of the testimony, and decide whether the entry of Pearce was before or after the demand made by the plaintiff for the possession on the third and again on the eighth of September. The Court, therefore, improperly refused the seventh and eleventh instructions asked by the defendants.
We see no reason to change the views expressed in our former opinion, in respect to the admissibility in evidence of the original answers of defendants.