In Pico v. Cuyas (47 Cal. 175), this Court saicl: “ We do not think that the effect of the contract proven was to change or modify the terms of the lease, or to work a surrender of it. The two contracts are entirely separate and distinct.” This was adopted as the law of the present case. (Pico v. Cuyas, 47 Cal. 180.) The Court below, therefore, was not authorized to assume that the law was otherwise, because of a statement in an affidavit that the defendant claimed that “the so-called lease was wholly suspended and set aside by the alleged contract of copartnership.” But if it could be assumed that such was the legal effect of the agreement of copartnership, the plaintiff could never recover the possession in the present form of action, because the relation of landlord and tenant did not exist by convention.

The existence of the partnership and the non-existence of the lease when the action for unlawful detainer was brought, would always constitute a defense to that action. The dissolution of the partnership would not aid the plaintiff to a recovery in the County Court. When that Court determined, on motion, that the plaintiff had a right to the possession, without reference to his asserted right under the lease, it, in effect, tried a supposed action of ejectment (in which no pleadings had been filed, and no jury was impaneled) upon ex parte affidavits.

Order reversed and cause remanded, with directions to the Court below to sustain the motion of Cuyas. Remittitur forthwith.

After the plaintiff had obtained judgment in the County Court, a writ was issued, and under it he' was put in possession of the premises. The judgment of the County Coxu’t having been reversed, and the cause remanded, the defendant moved the County Court that he be restored to the possession of the premises, and this motion was denied. From this order the appeal is taken.

*643This order is not an appealable order. It is not expressly enumerated as such in the Code, and it is not a “special order made after final judgment,” for there was no final judgment when the order was made. The order may be reviewed on an appeal from the judgment.

If the order was properly before us for review, we think, the opinion of the majority of the Court establishes that the plaintiff was entitled to be restored to the possession.