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The reasoning is clearly and wholly fallacious. The superior court has the right and the power to pass upon and decide a motion to dismiss an appeal taken thereto, and where the motion is based upon the ground that the undertaking required by section-978 of the Code of Civil Procedure for the indemnification of the costs accruing by reason of the appeal has not been filed, it is not only within the power, but it is the duty, of the court to dismiss the appeal or, speaking more accurately, the attempted appeal, since, as stated, the section named makes the filing of such an undertaking one of the essential and, indeed, indispensable requisites for conferring upon such court jurisdiction to hear and determine an appeal thereto from a justice's or police court. The rule that when a court once obtains jurisdiction of the subject matter of an action, it then has jurisdiction to decide a question arising therein erroneously as well as correctly, has no application to a case where the very question to be determined is whether the court has the legal authority to hear and determine the matter before it. The rule simply means that when the court has jurisdiction of the subject matter of the action, and makes error during the course of the trial or in its final decision, such error is correctible, not through a jurisdictional writ, but solely by appeal. Obviously, if the trial court is called upon to decide whether it has jurisdiction of the subject matter of the action and determines the question erroneously, or, having no jurisdiction, nevertheless claims it, it can be prevented from proceeding to exercise the usurped authority or, having exercised it, its action may be annulled and vacated by means of the remedy appropriate thereto.

For the reasons herein given, the order made by the respondents in this proceeding dismissing the appeal by the petitioners herein from the judgment of the justice's court of Little Lake Township, Mendocino County, in the action wherein said Harvey Carlton was plaintiff and the said petitioners were defendants, is hereby annulled, set aside, and vacated.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 1806. Second Appellate District.—October 17, 1916.) A. H. REHKOPF, Appellant, V. JOE WIRZ et al.,

Respondents. LANDLORD AND TENANT - ABANDONMENT OF PREMISES — UNQUALIFIED

TAKING OF POSSESSION BY LESSOR--ACTION FOR DAMAGES NOT MAINTAINABLE.—Where the possession of demised premises is vacated by the lessees prior to the expiration of the term, the lessor car.not maintain an action for damages in a sum equal to the difference between the rent which should have been paid under the lease and the amount for which he was able to rent the property for the period of the unexpired term, where he, upon being informed by the lessees of their intention to vacate the premises, took possession of the property and made a new lease thereof, without making any further demand upon the lessees, or in any manner informing them

of the course wbich he would pursue. ID.REPUDIATION OF LEASE BY TENANTS-ACCEPTANCE OF POSSESSION

FOR BENEFIT OF LESSEE-DUTY OF LESSOR.— Where a tenant aban. dons the leased property and repudiates the lease, the landlord may accept possession of the property for the benefit of the tenant and relet the same, and thereupon may maintain an action for damages for the difference between what he was able in good faith to let the property for and the amount provided to be paid under the lease agreement. But a lessor who chooses to follow that course must in some manner give the lessee information that he is accepting such possession for the benefit of the tenant, and not in

his own right and for his own benefit. ID.—UNQUALIFIED ACCEPTANCE BY LESSOR-RELEASE OF LESSEF.--An

unqualified taking of possession by the lessor, and reletting of the premises by him as owner to new tenants, is inconsistent with the continuing force of the original lease. If done without the consent of the tenant to such interference, it is an eviction, and the tenant will be released. If done pursuant to the tenant's attempted abandonment, it is an acceptance of the surrender and likewise releases the tenant,

APPEAL from a judgment of the Superior Court of Imperial County. Franklin J. Cole, Judge.

The facts are stated in the opinion of the court.

Dan V. Noland, and Walter B. Kibbey, for Appellant.

McPherrin & Nichols, for Respondents.

CONREY, P. J.- This is an action whereby the plaintiff seeks to recover damages for breach of the covenants of a written lease of real property. The court having granted defendants' motion for a nonsuit, judgment was entered, from which plaintiff appeals.

The lease was for three years, beginning April 1, 1913. Defendants paid the rent monthly in advance for the period of one year and vacated the premises a few days prior to April 1, 1914. Thereupon the lessor took possession of the premises and advertised for another tenant. During the month of April, 1914, he obtained another tenant to whom he leased the premises for a term of three years, beginning May 1, 1914, and at a rate of rental less than that provided for in the lease which had been made to defendants. Plaintiff claims damages in a sum equal to the difference between the rent which would have been paid under the lease of the defendants and the amount for which he was able to rent the property for the period of the unexpired term of the defendants.

Where a tenant abandons the leased property and repudiates the lease, the landlord may accept possession of the property for the benefit of the tenant and relet the same, and thereupon may maintain an action for damages for the difference between what he was able in good faith to let the property for and the amount provided to be paid under the lease agreement. (Bradbury v. Higginson, 162 Cal. 602, (123 Pac. 797].) But a lessor who chooses to follow that course must in some manner give the lessee information that he is accepting such possession for the benefit of the tenant and not in his own right and for his own benefit. If the lessor takes possession of property delivered to him by his tenant and does so unqualifiedly, he thereby releases the tenant. (Baker v. Eilers Music Co., 26 Cal. App. 371, [146 Pac. 1056) ; Welcome v. Hess, 90 Cal. 507, [25 Am. St. Rep. 145, 27 Pac. 369].) An unqualified taking of possession by the lessor and reletting of the premises by him as owner to new tenants is inconsistent with the continuing force of the original lease. If done without the consent of the tenant to such interference, it is an eviction, and the tenant will be released. If done pursuant to the tenant's attempted abandonment, it is an acceptance of the surrender and likewise releases the tenant.

In this case the plaintiff's testimony presents the facts clearly and without conflict. The defendants informed the

plaintiff that they were going to leave the ranch. They did leave, and omitted payment of the installment of rent which, according to the terms of the lease, fell due April 1, 1914. Without making any further demand upon the defendants, or in any manner informing them as to the course which he would pursue, the plaintiff took possession and made a new lease of the land as above stated. Upon these facts the plaintiff failed to establish any right of action for the damage3 claimed by him. In Auer v. Penn, 99 Pa. St. 370, [44 Am. Rep. 114), it was stated that if the tenant gives up the demised premises, the landlord may re-enter and relet, and that such action on his part raises no presumption of acceptance of a surrender, since it is for the advantage of the tenant that he should do so. Referring to that case and that proposition, the supreme court of California in Welcome v. Hess, 90 Cal. 507, [25 Am. St. Rep. 145, 27 Pac. 369), declared that while there are many cases which hold to this view, "the weight of authority and the better reason is the other way." It follows that the evidence in this case, although construed as favorably as possible to the plaintiff, was insufficient to establish his case and the court was right in granting the nonsuit.

In examining the evidence we have not overlooked the proposed alteration of the lease, which alteration was signed by the lessor and delivered by the lessor to the defendants for their approval, nor the evidence of the circumstances connected with that proposed change in the terms of the lease. The defendants did not sign the proposed supplemental agreement, and it does not appear that any of the things which they did after it was delivered to them amounted to an acceptance or part performance. Throughout the transaction they appear to have acted consistently with the terms of the original lease until the time when they abandoned the premises and thereby offered to surrender the same, which surrender must be deemed to have been accepted by reason of the acts of the plaintiff as above stated.

The judgment is affirmed.

James, J., and Shaw, J., concurred.

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A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 14, 1916.

[Crim, No. 513. Second Appellate District.—October 17, 1916.] In the Matter of the Application of EUGENIA N. DUPES,

for a Writ of Habeas Corpus.

DIVORCE_CUSTODY OF CHILDREN-APPEAL_STAY OF PROCEEDINGS.-In

an action for divorce an order included in the interlocutory decreo awarding the father the custody of the minor children of the par. ties is stayed by the taking of an appeal from such decree by the wife, and the trial court has no jurisdiction pending the appeal to order that such children be taken from the possession of their

mother and given to their father. ID.-EFFECT OF APPEAL-REMOVAL OF JURISDICTION.—The effect of the

perfecting of an appeal is to stay all further proceedings upon the judgment or order appealed from or matters embraced therein in the court below, and to remove the subject matter of the adjudication from the jurisdiction of such court.

APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District to secure the custody of minor children.

The facts are stated in the opinion of the court.

MacKnight & Fitzgerrell, and P. N. Myers, for Petitioner.

Chas. N. Sears, and E. J. Emmons, for Respondent.

SHAW, J.-The facts are as follows: On February 25, 1916, T. W. Dupes filed a complaint in the superior court of Kern County, wherein he prayed for a decree of divorce from Eugenia N. Dupes and the award to him of the care, custody, and control of Janice and Bernard Dupes, minor children of the parties, who it appears were at the time living with their mother. By answer and cross-complaint, Eugenia N. Dupes asked that she be awarded the decree of divorce and likewise awarded the care and custody of the children; each of said parents alleging the other's unfitness to have control of them. Pending the trial an order was issued to Eugenia N. Dupes requiring her to show cause why an order should not be made awarding the custody of the children to their father, and this matter coming on for hearing, the court, pursuant to stipulation of the parties, on March 6, 1916, made an order, subject to such further order as might be made, awarding the custody

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