Casci v. Ozalli

SHAW, J.

In the court below, upon motion of the plaintiff, judgment was entered upon the pleadings in favor of the plaintiff and against the defendants, with respect to the mining claim designated as the Gold Ridge Gravel Mine. Defendants appeal from this part of the judgment. The complaint asserted title to another mining claim known as the Gold Ridge Extension Gravel Mine, but plaintiff afterwards disclaimed any interest therein and judgment was given in favor of the defendants with respect to that mine. As to that part of the judgment no controversy arises, the appeal being solely from the other part thereof.

[283]

The complaint was-in two counts, the first count alleging that the plaintiff was the owner of an undivided one-fourth interest in the Gold Ridge Gravel Mine described therein, and that the defendants claimed and asserted an interest therein adverse to the plaintiff’s, which claims of the defendants were without right. The second count averred that the plaintiff was the owner and in possession of the same interest in the same mining claim, that the defendant Pelligrini Ozalli, claiming to act under an invalid power of attorney from the plaintiff, had executed to his co-defendant, Teluida Ozalli, a deed purporting to convey the plaintiff’s interest therein to said Teluida Ozalli, and that this deed was ineffective to convey the plaintiff’s interest, but that, nevertheless, the said defendant claims title thereunder. The prayer was that the deed be declared invalid and that the plaintiff’s title be quieted against the claims of the defendants. The answer, with respect to the first count, denied that the plaintiff is or ever was the owner of the mining claim described. As to the second count it denied that the plaintiff is or ever was the owner, or in possession, or entitled to the possession of the mining claim, or any interest therein, or any portion thereof.

The allegation that the plaintiff was the owner and in possession of the interest in the mining claim described was an allegation of facts material to the cause of action of the plaintiff.

(Payne

v.

Treadwell,

16 Cal. 243;