104 P. 842 | Cal. Ct. App. | 1909
The action was sought to be maintained under the forcible detainer act. The complaint alleges plaintiff's possession and right of possession of and to a certain eighty acre tract of land on the date stated and for a long time prior thereto, entry without right thereon by defendant and the subsequent withholding of possession from plaintiff, together with service of notice to vacate and surrender possession. The answer denied that plaintiff was in the lawful possession of the entire tract at the date stated, and denied the entry and withholding of possession without right. This answer was insufficient to raise an issue. (Doll v. Good,
The affidavit relating to irregularities occurring at the trial cannot be considered, the same not being incorporated in a bill of exceptions. (Higgins v. Los Angeles Ry. Co.,
Respondent does not contend that the findings have support in the evidence alone, but contends that there being no issues presented by answer no findings were necessary, and that no appeal having been taken from the judgment, the specifications of error in relation to the insufficiency of the findings cannot be the basis for a reversal of the judgment. In passing upon the motion for a new trial the court properly considered the admissions which follow a failure to deny the material allegations of the complaint. Section 462, Code of Civil Procedure, provides: "Every material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true." The complaint in its averments is as complete as was the one under consideration inLeroux v. Murdock,
The order denying a new trial is, therefore, affirmed.
Shaw, J., and Taggart, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on October 13, 1909, and the following opinion was then rendered thereon:
THE COURT. — The appeal in this case was from an order denying a new trial. Conceding that the improper refusal of a nonsuit may be considered upon such an appeal as an error of law occurring during the course of the trial, the grounds stated in the record on said motion are not those presented by the brief of appellant's counsel. In so far as the application is based upon the failure of the complaint to sustain the judgment, such matter cannot be considered on this appeal, the same being reviewable only on appeal from the judgment. (Frey
v. Vignier,
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 November 12, 1909. *314