17 Cal. 123 | Cal. | 1860
Baldwin J. and Field, C. J. concurring.
The complaint alleges that on a certain day the plaintiff was the owner and in possession of certain personal property, of the value of $1,000 ; and that the defendant on the same day seized upon and converted it to his own use. The answer denies that on the day specified the plaintiff “ was the owner, and lawfully in possession ” of the property; and, in relation to the value, says that the defendant has no knowledge, etc.and therefore denies that it was $1,000. The seizure is admitted; and the-
The defects in the answer are so obvious that a general reference to them is all that is required. The denial in relation to the ownership and possession of the property is subject to various objections. It raises an immaterial issue as to time ; and, in reference to the possession, amounts simply to a conclusion of law. There is not even the pretense of an issue upon this allegation, except conjunctively, with the allegation of ownership. Each of these allegations is sufficient to sustain the complaint; and an issue presented by a conjunctive denial must be regarded as irrelevant and immaterial. The denial as to value is based upon the want of any knowledge or information on the subject, and the insufficiency of such a denial has already been determined by this Court. (Gas Company v. City of San Francisco, 9 Cal. 453.) The seizure of the property being admitted, no evidence was necessary to entitle the plaintiff to recover, and as none was offered by the defendant, a verdict for the plaintiff was the necessary consequence. Under these circumstances, we think the instruction was correct; and even if it were technically erroneous, we should not regard it as sufficient cause to reverse the judgment.
There are several additional points made, but we see nothing in them to justify a reversal. The objections to the verification of
The original answer is not properly a part of the record, and cannot, therefore, be considered. The amended answer is complete in itself, and the intention, of course, was to supersede the original. Besides, the answers are inconsistent with each other, and cannot be permitted to stand together.
The motion for a continuance was based upon insufficient grounds. The absence of evidence is no cause for a continuance, unless reasonable diligence has been used to procure it. The party must have resorted to the proper legal means for that purpose, or he must show to the satisfaction of the Court that a resort to such means would have been unavailing. Where the evidence is in his own possession, its absence is not excused by showing that through inadvertence he is unable to produce it.
Judgment affirmed.