Schwarze

This is an action of unlawful detainer. Judgment was entered in favor of the plaintiff for the sum of $540, and costs of the action; the defendant moved for a new trial, which motion was denied, and thereupon he appealed to this court from the judgment, and from the order.

The principal point made on this appeal is, that the respondent, being a married woman, cannot recover,—that the rents, if any due, are community property, for which the husband alone can sue.

. This objection to the plaintiff’s right to maintain the action cannot be considered, because there is no demurrer, and there is nothing in the answer indicating an intention on the part of the defendant to raise the question of the plaintiff’s capacity to sue. The defendant states in his answer that “ plaintiff is a married woman, wife of one F. J. Schwarze; that said Schwarze is a tenant of the upper portion of the premises known as 1901 Polk Street, a portion of the same premises wherein the premises described in the complaint are situated, but denies that this plaintiff ever was in the occupation of the premises described in the complaint, or that she ever had any title or interest therein.” This is clearly *134…