fendant served and filed its memorandum of costs. On motion of plaintiff the court struck out this memorandum of costs, upon the ground that it was not filed within the time required by law, and the defendant appealed from the order.

Was the cost bill filed in time? It is claimed for the appellant that it was, because, first, it was filed on the fifth day after the judgment was entered, and second, that no notice of the decision was ever served by the plaintiff on the defendant or its attorney, and the defendant was not required to file its cost bill until such notice was given.

Section 1033 of the Code of Civil Procedure provides as follows:

66

The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve upon the adverse party, within five days after the verdict or notice of the decision of the court or referee, memorandum of the items of his costs and necessary disbursements in the action or proceeding," etc.

a

"The

In Porter v. Hopkins, 63 Cal. 53, it was held that the "decision" referred to in the foregoing section "is the finding of facts and conclusions of law, signed by the court and filed with the clerk as the basis of the judgment." And in O'Neil v. Donahue, 57 Cal. 231, it is said: object of the provisions of section 1033 (Code Civ. Proc.), as to the costs, was to give the successful party who claimed such costs five days after he had knowledge of the verdict or decision to file and serve his memorandum. If the successful party had knowledge of such decision beyond all doubt, as she did in this case, why require the defendant to serve notice of that fact on her?" And it was held in that case, the memorandum of costs having been filed more than ninety days after the plaintiff had knowledge of the decision, though no notice of it had been served upon her, that the memorandum was filed too late, and should have been struck out.

LXIX. CAL.-36

In this case it is clear that the defendant had knowledge "beyond all doubt" of the decision in its favor months before it served and filed its memorandum of costs. It acted upon this knowledge while contesting the plaintiff's right to a new trial, and if written notice was required, must be held to have waived it. (Barron v. Delaval, 58 Cal. 95.)

Biagi v. Howes, 66 Cal. 469, was upon a different section of the code from the one involved here, and the ruling in this case is not necessarily in conflict with what was held in that.

It follows that the order should be affirmed.

FOOTE, C., and SEARLS, C., concurred.

THE COURT. For the reasons given in the foregoing opinion, the order is affirmed.

JOSE RAMON CASTRO, RESPONDENT, V. EMILY S. TEWKSBURY ET AL., APPELLANTS.

FORCIBLE ENTRY ACTION FOR

ID.

WHAT PLAINTIFF MUST SHOW. - In order to maintain an action of forcible entry, the plaintiff must show that he was in the actual and peaceable possession of the property entered upon; that the defendant, by some kind of violence or circumstance of terror, entered into or upon the property, and so turned the plaintiff out and took and held possession of it himself; or that after making a peaceable entry the defendant, by force, threats, or menacing conduct, turned the plaintiff out and took the possession.

- DOES NOT LIE FOR MERE TRESPASS. An action of forcible entry does not lie for a mere trespass on land.

ID. EVIDENCE

POSSESSION.

The evidence reviewed, and held not to show a forcible entry by the defendants, or such an actual and peaceable possession in the plaintiff as was necessary to enable him to maintain the action.

APPEAL from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.

The facts are stated in the opinion.

William & George Leviston, and B. S. Brooks, for Appellants.

W. S. Tinning, J. C. Martin, and A. M. Rosborough, for Respondent.

BELCHER, C. C. This is an action of forcible entry. The premises involved are situated in Contra Costa County, and consist of a hundred acres of land, with a dwelling-house thereon.

The plaintiff recovered a verdict for restitution of possession and damages in the sum of seven hundred dollars, which were trebled in the judgment.

The defendant moved for a new trial, which was denied, and then appealed from the judgment and order. Two questions only need be considered:

1. The alleged entry, whatever may have been its character, was made on the ninth day of June, 1880, and was into the dwelling-house, and not upon any other part of the premises. Did the plaintiff at the time of the entry have such possession of the house as was necessary to enable him to maintain an action of this character?

In this state, in order to maintain an action of forcible entry, the plaintiff must show :

That he was in the actual and peaceable possession of the property entered upon;

2. That the defendant, by some kind of violence or circumstance of terror, entered into or upon the property, and so turned the plaintiff out and took and held possession of it himself; or,

3. That after making a peaceable entry the defendant, by force, threats, or menacing conduct, turned the plaintiff out and took possession. (Code Civ. Proc., secs. 1159, 1172.)

Speaking of what was a sufficient possession to main

tain the action, this court said in Hoag v. Pierce, 28 Cal.

"If the possession of the plaintiff was not actual and of sufficiently long standing to become to a legal intent peaceable, then he was not in a condition to maintain his action." In Treat v. Stuart, 5 Cal. 113, the court said: "The plaintiff in an action of forcible entry and unlawful detainer must show an actual, peaceable possession in himself at the time of the entry "; and in House v. Keiser, 8 Cal. 500, which was an action brought under the act concerning forcible entries and unlawful detainers, the court said that "a party who desires to avail himself of the summary remedy provided by this act must bring himself clearly within its provisions. He must show a possession, actual, peaceable, and exclusive; a mere scrambling or interrupted possession, or the exercise of casual acts of ownership over the premises, is not sufficient."

And in that case it was held that one who in the morning entered upon a portion of a tract of land in the possession of another, and inclosed it with a fence and put a house on it before sundown, did not acquire such a peaceable possession as to enable him to maintain forcible entry and detainer against the possessor, who, at sundown of the same day, destroyed the house and fence and drove him away.

So in Voll v. Butler, 49 Cal. 74, it was held that an action of forcible entry and detainer cannot be maintained upon a scrambling possession.

As between two parties struggling for possession, neither can maintain an action of forcible entry and detainer against the other until he has acquired an actual possession which has ripened into a peaceable occupation.

Here it clearly appears from the record that the defendant Emily S. Tewksbury claimed, and had claimed for several years, that the whole property was the property

of the estate of her deceased husband, of which she was the executrix; that one Alberto, with his family, had occupied the dwelling-house, with about an acre of land surrounding it, by permission of Mrs. Tewksbury, since 1877, and that a few days before the 9th of June he notified her that he was going to leave because Castro was troubling him, and that he wished her to send some one to take possession; that she requested him to remain till the 9th, when she would send some one, and he did so; that between seven and eight o'clock on the morning of the 9th the plaintiff went to the house and asked Alberto if he was going to move, and being answered in the affirmative, said the house was his and he was going to put his things there.

According to the plaintiff's testimony, Alberto then told him: "He knew I was the owner of the place, and to take it, as he was going for a wagon. No one was present then except Moitozo." Moitozo contradicted the plaintiff. He certified that when the plaintiff said the house was his, "Alberto replied that if it was he didn't know it; that he got possession through Mrs. Tewksbury, and was going to give possession to her. He did not say that Castro could have the house, or anything to that effect." And this statement was confirmed by both Alberto and his wife.

The plaintiff then went away, but shortly after returned, bringing some articles of furniture, and followed by his wife and six daughters. They all went into the house, and remained in or about it, but did not interfere with Mrs. Alberto, who was engaged in her household work; nor with Alberto, who was there most of the time, getting his things ready to remove.

At about eleven o'clock in the forenoon the defendants Cashman and Rollins arrived at the house, being sent there by Mrs. Tewksbury to take possession for her. They found Castro outside, and Alberto, his wife and children, and some of the Castro children, inside. Al