Buhman

Unlawful detainer. The complaint contains allegations showing that the executors of the last will of Charles Robinson, deceased, leased certain real property of the estate in Napa County to the defendant corporation, and that the defendant went into possession under said lease. That the lease contained the following covenant: “It is further mutually understood and agreed by the parties hereto, that in case of a sale of the demised premises that the said second party will quit and surrender the said premises upon 30 days’ written notice, and the said first parties will pay to the said second party the actual cost or expense that said second party may have been put to in putting any crop of hay or grain upon said premises.” That the will of Robinson, deceased, authorized and empowered the executors to sell any property of the estate, without order or notice, at public or private sale. That under said power the executors sold the leased land to plaintiffs, at private sale, on October 15, 1902. That said sale was reported to the superior court on November 26, 1902, and on December 30, 1902, an order confirming the sale was made and entered. That pursuant to said sale a deed was…

The petition for a rehearing is denied. This court on July 5, 1905, reversed the judgment which was rendered by the trial court in favor of defendant. Defendant now asks a rehearing on the ground that its answer erroneously alleged that the notice of appeal from the order confirming the sale of the real property in question was filed on January 12, 1903, when, in fact, it was not filed until January 19, 1903, on which day, also, the undertaking was filed. As the record stood when the cause was submitted here, it appeared by the answer that the undertaking was not filed five days after the notice of appeal was served, and, hence, as we held, the appeal was ineffectual for any purpose.

In appellant’s brief the point was distinctly made and attention was specifically drawn to the allegations of the answer, and numerous cases were cited in support of the point. Respondent took no notice of the matter, and in its brief made no suggestion that there was any clerical or other error in the date given for the service of said notice of appeal, but relied wholly on its demurrer to the complaint.

The supreme court has denied rehearing in numerous cases (but few of which are reported), where…