Appeal from the Twelfth District.

Ejectment for a lot in San Francisco.

The complaint, among other things, avers that “ heretofore, to wit: on the first day of January, A. D. 1855, Joseph Hetherington was seized and possessed of a certain lot or parcel of ground in the city and county of San Francisco,” etc.; that on said day, said Hetherington was the owner of said lot, and was at that time, or shortly previous thereto, in the actual possession of the same; that after said day and before the twenty-ninth day of July, A. D. 1856, and the precise time this plaintiff cannot state, said defendant entered into possession of said premises with the consent of said Hetherington, that she might occupy and use the same as his tenant at will; that said Hetherington made no conveyance of said lot to said defendant, but gave her permission to occupy the same; * * that said Hetherington died July 29th, 1856 ; that plaintiff is his executor, etc.; “ that after the death of said Hetherington and the probate of said will and the qualification of plaintiff as executor, the plaintiff proceeded to said premises, and found said defendant in possession of the same; that said defendant stated that she claimed said lot to be her property, that said Hetherington had given it to her, and that she would not yield the possession of the same unless she was compelled to ; that said defendant has on various other occasions and at different times claimed to be the owner of said lot, in violation of the rights of the devisee of said Hetherington and of this plaintiff as executor of said estate; that this plaintiff as such executor is entitled to the possession of said lot, and that said defendant unlawfully and unjustly retains the possession of the same. Plaintiff further states, that the monthly value of said premises is fifteen dollars, and that said defendant has been in possession of the same more than three years past.”

Plaintiff further states, that one Joseph Hetherington in his lifetime, to wit: during the years 1853,1854, 1855, and since, was lawfully seized of an estate in fee simple, and was in the actual possession of the following premises in the city of San Francisco, * * and being so seized and possessed, said defendant, and before the commencement of this suit, entered into the possession of the same, and unlawfully and with force and arms ousted said Hetherington therefrom, and unlawfully detained the possession thereof from the said Hetherington in his lifetime, and still does detain the possession thereof from this plaintiff; that said Hetherington afterward, and on or about the twenty-ninth day of July, A. D. 1856, departed this life, leaving a will, in which he appointed this plaintiff executor, etc.; * * that said premises are of the monthly value of fifteen dollars, and that said defendant has occupied the same for more than three years last past. Plaintiff prays judgment for the possession of the said premises, with eight hundred dollars damages and costs.

Defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. Overruled.

The answer contained a general denial; and set up that Hetherington was indebted to defendant $1,000, for services rendered, and goods, wares and merchandise furnished him by defendant, and that, in consideration thereof, he agreed to convey to defendant the premises in controversy, and placed her in possession thereof, and ever afterwards treated her as owner; but that, owing to his sudden death, no deed was ever executed.

It seems from a statement in respondent’s brief, which is not denied in the brief of appellant, that the cause was fixed for trial in the Court below for a particular day, in pursuance of an agreement between the counsel of the parties. It also appears from the briefs, that two or three days before the time fixed for trial, defendant’s attorney went to San Leandro, Alameda county, to try a cause, and did not return until a few hours after this case had been tried and determined. It would also seem from the briefs, that defendant and her attorney filed affidavits of merits and surprise, etc., on the motion for new trial. None of these things appear on record. The only statement there is, that the case came on regularly for trial in its order on the calendar, and that plaintiff appeared in person | that defendant’s attorney not being present, at the request of his clerk, another attorney “ stated to the Court the fact of his absence at San Leandro, and asked that the trial be postponed, until his return, which application was denied, and the trial proceeded. Ho one appearing to represent the defendant upon said trial, the plaintiff proceeded ex parte. The plaintiff introduced no evidence in addition to his letters testamentary and proof of the monthly value of the premises, except a stipulation, signed by the attorneys of plaintiff and defendant, in these words : “ It is admitted that the plaintiff’s testator, Hetherington, was the owner of the premises prior to defendant’s entry. That defendant entered under him, and now claims the premises as her property, and is in possession. The defendant does not design in this stipulation to admit a tenancy at any time.”

Verdict and judgment for plaintiff, for possession and eight hundred dollars damages. Defendant moved for a new trial, on the grounds : 1st, accident and surprise ; 2d, insufficiency of the evidence to justify the verdict; 3d, that the verdict is against law. Denied. Defendant appeals.