51 Cal. 639 | Cal. | 1877
The “cause of action” set forth in the complaint was that the defendants claimed as estate or interest in the premises of which the plaintiff averred himself to be in the possession, and the “subject of the action was the adverse claim, estate or interest, ” set up_ by the. defendants.
The answer of the defendants did not amount to a counter-claim. It stated the facts essential to a complaint in ejectment against the plaintiff, and demanded that the possession of the premises be awarded to the defendants. This was neither the statement of a cause of action arising out of the transaction set forth in the complaint, nor one connected with the subject of the action in the sense of the statute. (Code Civil Procedure, Sec. 438.)
The motion of the plaintiff to dismiss the action should, therefore, have been sustained.
Judgment reversed and cause remanded, with directions to dismiss the action.
