Plaintiff, Mary S. Johnson, and respondent in this court, brought an action of unlawful detainer against the defendant, Mrs. A. Smith, the appellant, in this court. There is no conflict so far as the evidence in the ease *860 is concerned. The written lease contained the following provision, among others:

While this paragraph is somewhat prolix, reduced to its simplest form it means that if the lessor recovers judgment then the lessor is the prevailing party and attorney’s fees may be recovered as an incident to the judgment.

When the suit was filed in the municipal court there was a cross-complaint filed by the defendant, claiming an amount of damages large enough to oust the jurisdiction of the municipal court, and the case was transferred to the superior court. In the superior court, on motion of the plaintiff, the cross-complaint was dismissed inasmuch as the cross-complaint is not permissible in an unlawful detainer suit. The question, however to decide here is when can attorney’s fees be allowed on a written contract and who is the prevailing party. The lower court made findings contrary to the evidence, and then the court made a conclusion of law that the defendant unlawfully detained said premises. As a matter of fact, he should have made a finding she was not guilty of unlawful detainer, and the judgment should have been in favor of the defendant. It is elementary that the evidence must support the findings and that the findings must support the judgment. It is the argument of the respondents that the plaintiff was the prevailing party; with this contention we do not agree. The prevailing party in a lawsuit is the party who gets the judgment, or should have gotten it. Industry of counsel has been unable to cite any authorities that fit the facts in this case *861 and the court in an independent investigation has not been able to find anything just like this case; but the principle is plain. The facts show that after the suit was brought the plaintiff accepted the rentals that were due and waived any other defaults, if there were any; so, clearly, the defendant prevailed, and before the plaintiff could get attorney’s fees from the defendant the plaintiff would have to get the judgment. (In O’Hare v. Peacock Dairies, Inc., 28 Cal.App.2d 562 [ 82 P.2d 1112 ], the court said, “The prevailing party in any action is one in whose favor the verdict or decision is rendered and judgment entered.” Appellant also argues that the plaintiff prevailed on the cross-complaint. This does not help the respondent unless the contract is severable, which we do not hold in this case. In Gerstein v. Smirl, 70 Cal.App.2d 238 [ 160 P.2d 585 ], it is said: “In this case plaintiff instituted an action to recover damages allegedly sustained by him in an automobile accident as a result of defendant’s negligence.” The defendant answered and also filed a cross-complaint. Upon the trial of the action, the jury returned a verdict denying relief to both parties under their respective pleadings. Defendant filed a memorandum of costs and disbursements, and judgment ivas entered upon the verdict that plaintiff recover nothing from defendant, and that said cross-complainant, Helen Y. Smirl, recover from said cross-defendant, nothing, together with costs and disbursements incurred in the action amounting to the sum of $147.80. Plaintiff appealed from the judgment and from the order denying motion to tax costs. In this ease the court says:

*863 An unlawful detainer action is a summary proceeding designed to provide a speedy remedy to determine the right to possession of real property, Staudigl v. Harper, 76 Cal.App.2d 439 [ 173 P.2d 343 ], and the gist of the action is for possession. The rent is only incidental, As before stated, where attorney’s fees are provided for by written contract, there has to be a recovery on the contract before any attorney’s fees can be allowed, and the time to insist on attorney’s fees was before accepting the payments in default, or, waiving the other defaults, if any. And while in this case the lower court purported to give the plaintiff judgment there was no way he could give her judgment because the defendant was not in default and the defendant should have had judgment. We are not unmindful of the ancient adage that the laborer is worthy of his hire and we also believe an attorney is worthy of his fee, but this is a question of who should pay the fee. It is our opinion it should be paid by the plaintiff and not the defendant. Also, the mere fact that the matter appeared justified and equitable to allow a recovery of attorney’s fees is no justification for such an allowance. (Bank of America v. West End Chemical Co., 37 Cal.App.2d 685 [ 100 P.2d 318 ].)

The judgment is reversed with directions to the lower court to change its findings and conclusions in accordance with the views expressed herein and enter judgment that the plaintiff take nothing and that the defendant have judgment for possession and her cost.

Bradshaw, J., concurred in the judgment.