Hemenway v. Francis

20 Or. 455 | Or. | 1891

Strahan, C. J.

— There is but a single question presented on this appeal, and that is the sufficiency of the defendant’s answer. The special point of objection is, that the defendant only defends as to part of the land described in the complaint, and as to that part it is not described with sufficient certainty. Section 319, Hill’s Code, though relating to the answer in this class of actions, does not undertake to prescribe all that an answer shall contain. The defendant’s answer must, therefore, be governed by the general rules of pleading prescribed by the Code, and in addition thereto must comply with section 319. That section requires that if the defendant does not defend for the whole of the property he shall specify for what particular part he does defend, and the question is, whether or not the answer in this case contains such specification. The answer does not conform in any respect to the general rules of Cede pleading. It does not state the ultimate fact upon which the defendant relies. Instead of pleading that he was in possession under an unexpired lease from the plaintiff to defendant, giving the duration of the estate created by the lease, the defendant has undertaken to plead the evidence of such right, or the terms of the lease by which such right was created. If objected to at the proper time, no doubt the court would have caused the answer to be corrected, but no objection was made to the answer until after verdict, and then only by way of a motion to set aside the verdict and grant a new trial. A defect in the answer was no cause for granting a new trial. (Hill’s Code, § 235.) But for a defect in the answer that the facts stated do not constitute a defense to the plaintiff’s cause of action, and such objection has not been taken by demurrer, the plaintiff may have judgment notwithstanding the verdict, and the same rights are secured to the defendant in like case where the complaint is fatally defective. (Hill’s Code, § 266.) But this motion was not made. The part of the premises described in the complaint for which respondent defends as specified in the answrer is “about 120 acres of said land, — the farming land on the north side of the county road, with the buildings thereon.” This is a very indefinite description, but the plaintiff omitted to object to it before trial, and after verdict and judgment; for the purpose of upholding the same, we must intend on objection made in this court for the first time that the proper evidence was introduced upon the trial to satisfy the jury of the location and identity of this piece of land. The fact of the leasing was passed upon by the jury, and when no error is shown to have intervened at the trial prejudicial to the rights of the appellant, we do not think we are required to interfere. Counsel for appellant have cited Jackson v. Lodge, 36 Cal. 28, and Gale v. Tuolumne County Water Company, 44 Cal. 43, but we have examined those cases and they do not support or tend to support counsel’s contention.

It follows that there is” no error in the judgment appealed from, and the same must be affirmed.