I. The first count of the complaint avers ownership in Hetherington, tenacy at will in defendant, and claim of ownership by her in violation of her landlord's rights. This constitutes an ouster, and good cause of action. (Adams' Ej. 125; 6 Johns, 272; Smith v. Shaw , 16 Cal. 89-92, and authorities cited by appellant and by the Court; Id. 220.) Thesecond count alleges seizin of plaintiff's testator, unlawful entry by defendant, and ouster of said testator; and both counts allege unlawful detention by defendant, death of testator, etc.
II. The executor of Hetherington can maintain the action. (Wood's Dig. 411, art. 231, secs. 195, 196.)
III. The stipulation admitted facts from which a tenancy resulted as a conclusion of law.
IV. There was no legal excuse for the absence of defendant's attorney.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
A petition for rehearing was filed, upon which Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.
Rehearing denied. It is scarcely necessary to notice the hypercriticism of the petition upon the language of the opinion--" the discretion of the Court below cannot be reviewed in its refusal to set aside the judgment for the cause assigned--the absence of the attorney at the time of trial." This language was not designed to assert the doctrine that this Court did not possess the power to review the action of the Court below on such applications, but merely that the facts of this case did not warrant such interference. The meaning of the statement is, that this Court cannot, in consistency with the rules of law in such cases, interpose--not because we have no jurisdiction of such matters, but because the matter invoked is improper, and therefore not warranted by law, under the facts of the case. To hold that an attorney can go off when he knows his case is set for a particular day, to try a case in another and distant Court, without making some arrangement in respect to the first case, or for having it attended to, and then claim to set aside a judgment obtained against him in the first suit, because of his absence, would lead to consequences too apparent to require illustration.
The second point insisted upon was fully considered, and we had not, nor have we now, the slightest doubt as to the true intent and meaning of the stipulation.