Spear

The only question raised upon this appeal is whether or not the trial court had discretion under the facts presented to render a judgment against a tenant holding over for rental only, without trebling the amount. Respondent purchased certain premises of which appellant held possession under a verbal agreement which respondent alleged was a tenancy from month to month, and served upon him a thirty-day notice to vacate; upon his failure to do so, it served the statutory three-day notice, and subsequently brought this action for possession of the premises and treble rents. Appellant’s answer alleged that he was in possession under a parol lease for one year, and that his term had not expired. The findings of the trial court were in favor of the owner for all demands, and among other things recited:

Appellant’s contention is that section 1174 of the Code of Civil Procedure afforded the court discretion to enter judgment for the rent due, or for treble such amount, basing his argument upon the following provision thereof:

Section 735 of the Code of Civil Procedure also provides that:

The finding referred to and respondent’s position are based upon section 3345 of the Civil Code,…