McCormick v. Bailey

10 Cal. 230 | Cal. | 1858

Lead Opinion

Burnett, J.

This was an action to recover the possession of land, and for damages. In their complaint, the plaintiffs allege actual possession in themselves. The complaint was verified, and the specific facts alleged to constitute title are not sufficiently denied in the answer to raise an issue. It is unnecessary, however, to decide whether the- facts, as alleged, constitute a title sufficient to maintain this action as against mere trespassers, as there is no sufficient denial, in the answer, of the allegation of actual and peaceable prior possession. (Curtis v. Richards and Vantine, 9 Cal., 33; Humphreys v. McCall, Ib., 59.)

By the answer, there are but two issues properly made: first, that the premises were swamp and overflowed lands; and, second, the amount of the damages. The first issue it was unnecessary to determine, a.s the actual and peaceable possession of the premises by plaintiffs, at the time of the entry of defendants, was not properly denied. And as to the amount of damages, there was ample testimony. There was no error in admitting the testimony of Kirwan, the lessor of plaintiffs, as the objection *233to his testimony was expressly based upon his liability, as shown by the lease, when the lease did not bind him to protect the plaintiffs against trespassers. Had the counsel based his objection to the admission of this testimony upon the ground that Kirwan would have an interest in the judgment as evidence for him in any future suit he might have with defendants in refererence to the same premises, then it xvould have presented another question. Whether a judgment in an action to recover the possession of land, under our Code, would be a bar to another action involving the same title, between the same parties, in reference to the same premises, it is not necessary in this case to determine.

We see no error in the decision of the Court below, and the judgment is, therefore, affirmed.





Concurrence Opinion

Terry, C. J.

I concur, for the reason, that as the answer contained no sufficient denial, either of plaintiffs’ title or possession, the only issue before the jury, on which it was necessary to introduce proof, was as to the amount of the damages, and in this question plaintiffs’ lessor had no interest.