Appeal from the Fourth District.

Ejectment against thirty-three defendants for four fifty vara lots in the city of San Francisco, to wit: lots 1471, 1472, 1478, 1479. The complaint is in the usual form, describing the land as in a single tract two hundred and seventy-five feet square, charging that “ the defendants on, etc., wrongfully entered upon said premises and ousted plaintiff therefrom, and are now wrongfully in possession of said premises,” etc., praying for $5,000 damages.

The complaint was filed April 21st, 1855. All the defendants answered except Mitchell, Stockdale and Shane, who neither appeared nor answered, and Nickle, who demurred. This demurrer was overruled, August, 1855, and an answer subsequently filed. Some of the answers were simply general denials, while others contained a general denial, and also averred possession of only a portion of the land sued for. June 17th, 1856, plaintiff filed an amended complaint, the parties and description of the land being unaltered, and the complaint being complete in itself and evidently a substitute for the original. On the same day the cause was tried before the Court without a jury, by consent, on the issues between plaintiff and defendants Weed and Bensley, and a finding being made that said two defendants were in possession of lot 1478, judgment was entered against them for said lot and costs—nothing being done as to the other defendants.

Nothing further appears to have been done in the case until August 22d, 1859, when it was called and tried by the Court. The findings of the Court, dated Aug. 80th, 1859, so far as they relate to the questions involved in this appeal, are as follows, to wit: “ In this action, the case having been regularly called upon the calendar at the term of the Court, commencing on the first Monday of August, 1859, and the defendants having failed to appear, and the plaintiff having then and there, in open Court, by his consent entered in the minutes, waived a jury, the case was, by the consent of the Court, set for trial by the Court without a jury. And afterwards, on or about August 22d, the case came on to be tried, and upon the pleadings therein, and the proof given at such trial by the plaintiff, the Court finds the facts as follows: 1. * * 2. * *' (Twenty-one of the defendants being found to have ousted plaintiff, etc.)

“ 3. At the commencement of this action, which was on April 21st, 1855, the defendants, Patrick Nickle, Thomas Morse, Joanna Lindsay, &c., &c., James Stockdale, &c., &c., * * * who were regularly served with the complaint, and summons therein, on or about April 21st, 1855, and also with the same, as amended, June 17th, 1856, all of whom have appeared and answered, except the defendants Mitchell, Stockdale and Shane, who never appeared and answered.”

Upon this finding, judgment was entered in favor of plaintiff, and against said twenty-one defendants jointly, for the possession of the whole land sued for, and for costs. The judgment recites the names of six witnesses as being examined for plaintiff.

Defendant Stockdale alone appeals.