Our former opinion was delivered upon the theory that the only substantial question involved, was whether forcible entry would lie against a party who had been put in possession by an officer of the law, in good faith, under legal process. After our opinion was filed the appellant presented a petition for a rehearing, in which it was broadly claimed that the point upon which we had disposed of the appeal was not presented by the record notwithstanding it had been most elaborately argued upon both sides. Profoundly impressed by the apparent earnestness of counsel we were induced to grant a rehearing in order that we might have further opportunity to ascertain, if possible, what legal propositions were involved in the case. A rehearing has been had and we are now fully satisfied that we did not at the first hearing misapprehend the true condition of the case. On the contrary we have no doubt but that this *223action was brought upon the theory that it afforded a proper remedy and would lie against a party put in possession by an officer under process and acting in good faith if in so doing he turned out a party whom he could not lawfully dispossess by virtue of his writ; and that it was tried and determined upon that theory in the Court below.
Incompetent testimony not objected to.
The fact that the entry complained of was made under the circumstances above indicated was substantially shown by the testimony of the plaintiff himself, and his witnesses, both on the direct and on the cross-examination. At least it was so far shown-as to warrant the Court, while passing upon the motion for a nonsuit, in assuming, as the Court unquestionably did, that the entry was made in that manner. It may be conceded' that the testimony was incompetent if objected to, but it was not, and the Court was justified in entertaining it for the purpose of determining what should be the judgment upon the motion for a nonsuit. Moreover, for the purposes of the motion for a new trial, so far as the same was grounded upon the sufficiency or insufficiency of the evidence, the Court was also bound to treat the testimony as competent, for, not having been objected to at the time it was admitted, it was then too late to claim that it proved nothing because it was incompetent. (McCloud v. O’Neall, 16 Cal, 392; Curiac v. Packard, ante, 194.) Whether it was sufficient proof or not, however, would be a different question; but the Court below seems to have regarded it as sufficient, and we are not disposed to question the correctness of its conclusion.
But beyond and independent of what has been said, it is apparent to us upon the face of the record that the fact that the entry was by an officer in good faith under color of legal process, was at least tacitly conceded by counsel for the plaintiff on the motion for a nonsuit. It is manifest to us that he did not regard that fact as standing in the way of his remedy. This is apparent from the fact that he made no objection to the testimony when offered, evidently attaching no importance *224to it and willing to concede the fact; and from the further fact that the ruling of the Court to the effect that forcible entry would not lie in such a case is assigned by him in his motion for a new trial as one of the errors upon which he should rely, unaccompanied by any point to the effect that the evidence was not sufficient to warrant the Court in assuming upon the motion for a nonsuit that the entry was of that character. Under such circumstances it would be gross injustice to the respondent to allow the fact that the entry was of the character claimed by him to be now questioned.
We see no reason for not adhering to our former conclusion.
Judgment affirmed.