Donoghue

The action was commenced to recover possession of a certain real property operated as a mine, plaintiff claiming possession by virtue of the terms of a written lease from the owner Kremmel, one of the defendants.

In the complaint plaintiff sought damages for withholding in addition to his demand for possession. At the trial, however, all claims were abandoned other than the one for possession. The ownership in fee of the premises is admittedly in Kremmel and the execution and delivery of the lease to plaintiff is likewise conceded.

It is the contention of appellants here that respondent breached the terms of the lease and abandoned the property, whereupon Kremmel leased the premises to the co-defendant Wilson.

Further, appellant contends that there was no ouster upon which could be predicated this action in ejectment. The case was tried by a jury and it was stipulated that the only issue submitted was that of possession and restitution. A verdict was returned in favor of plaintiff and thereafter judgment was entered ordering that plaintiff be restored to possession of the premises.

The record before us is hardly satisfactory inasmuch as respondent has not seen fit to aid by…