| Cal. | Apr 15, 1865
Lead Opinion
By the Court,
.This action was brought in the County Court of Santa Barbara County, under the Act of 1863, concerning forcible entries and detainers. A motion for judgment on the pleadings, on the ground that no material allegation of the complaint is denied by the answer, having been made and denied, a trial was had, and a verdict and judgment rendered in favor of defendants. Plaintiff appeals.
There is no attempt in the answer to deny several of the material allegations of the complaint, as the peaceable possession of the plaintiff, the damage, etc. There is an attempt to deny the allegations as to the forcible entry and the forcible detainer; but if the provisions of the Civil Practice Act on the subject are applicable to this action, the denials in the answer, under the repeated decisions of this Court and of our predecessors are insufficient. Portions of the allegations are denied conjunctively. An allegation consisting of several clauses or propositions connected by the copulative “ and ” may not be true, as a whole, and can therefore be safely denied in that form, while one material branch of it may be true, and cannot for that reason be separately denied. A denial of the entire proposition in such case is evasive and insufficient.
The party must specifically deny each allegation he desires to controvert, and when the allegation is complex, embracing several clauses or propositions, he must deny each branch of the proposition separately and disjunctively, or his denial will be insufficient. (Landers v. Bolton, 26 Cal. 417.) We think, also, that in this action the rules of pleading prescribed by the
The Court also erred in adjudging the costs to be paid in gold coin.
The respondents insist that the complaint is insufficient in two particulars, viz:
Firstly—The complaint does not “ describe the premises sought to be recovered with reasonable certainty,” as required by section eight of the Act. It is described as follows: “ That certain tract or parcel of land situate in the County of Santa Barbara, and known as the Rancho Sespe, granted by the Mexican Nation to Don Carlos Antonio Carrillo by grant dated November 29, 1833, and bounded and described as follows : ‘ Bounded by the Missions of San Fernando and San Buenaventura, situated in the then jurisdiction of Santa Barbara, containing six square leagues, or six sitios de ganado mayor, a little more or less.’ ”
We cannot say that this description appears upon the face of the pleadings to be insufficient. We cannot tell what the evidence may show in regard to it. It may be that there will be no difficulty in applying the description to the lands. The plaintiffs can only recover the lands of which they were in the actual peaceable possession, and upon which the forcible entry was made. And the precise lands sought to be recovered should be described “ with reasonable certainty.” The suit is brought in the County of Santa Barbara, and the land is described as being in the County of Santa Barbara. We think the intendment must be, that the land is in the county where the suit is brought, and that a failure to mention the State in the description is not a fatal defect.
Secondly—The allegation of possession is insufficient because the word “ actual ” is omitted, that word being used in section two, which prescribes the particulars necessary to be proved to entitle plaintiff to recover. We think the objection not
As the Court below held the answer to be sufficient we think a new trial should be had. Had the ruling'of the Court been otherwise, probably the defendants would have asked leave to amend. When the case goes back they can apply to the Court below for leave to amend their answers if they so desire.
In this case, as in many others, the entiré minutes of the Court are copied into the transcript. This is not proper, as we have often held. See Harper v. Minor, 27 Cal. 197, where we distinctly pointed out the proper practice.
Exceptions taken during the progress of a trial under sections one hundred eighty-eight and one hundred eighty-nine of the Practice Act, whether “ delivered in writing to the Judge ” by the counsel, or “ written down by the tierk,” should be written upon sheets of paper, settled and signed by the Judge, and filed in the case ; and when the judgment roll is made up, attached to the judgment roll. The proper place for these exceptions is not in the minutes of the Court, for they are to form a part of the judgment roll. (Section 203, second clause.) When an appeal from the judgment is taken, these bills of exceptions are certified up as a part of the judgment roll, ,and not as copies from the minutes of the Court.
Judgment reversed and new trial ordered.
Concurrence Opinion
Mr. Justice Shaeter delivered the following opinion, concurring specially, in which Mr. Justice Rhodes concurred :
I concur in the opinion, but still do not consider that the plaintiffs’ allegation that they were peaceably possessed involves an averment that they were actually possessed. The complaint, however, states that the plaintiffs had the land “ reduced to their absolute dominion and control,” and that the defendants “ drove