O'Connor v. Frasher

53 Cal. 435 | Cal. | 1879

By the Court:

The demurrer to the defendants’ pleading should have been sustained. It is impossible to determine from the face of the pleading what portion of it was intended to constitute a legal defense to the cause of action averred in the complaint, and what portion was intended as a cross-complaint.

Treating the whole pleading as a cross-complaint, the demurrer should have been sustained. (Thomas v. Lawlor, ante, p. 405.)

Finally, even if we were authorized to say that the denials (separated from the other matter) made issues at law, the Court did not find upon such issues, but only found probative facts which were not necessarily conclusive of such issues. (Coveny v. Hale, 49 Cal. 552.)

Judgment and order reversed, and cause remanded for a new trial.