Watson v. Zimmerman
Before: Terry
Synopsis
To enable the plaintiff in ejectment to recover on prior possession, he must allege and prove an actual ouster.
The want of such an allegation in the complaint, is a defect which cannot be cured by a default taken through the mistake or inadvertence of defendant’s counsel.
The opinion of the Court was delivered by Mr. Justice Terry. Mr. Chief Justice Murray concurred.
To enable the plaintiff to recover in an action of ejectment founded on prior possession, he must allege and prove an actual ouster by defendants or those under whom he holds. Treadwell v. Paine & Dewey, 5 Cal. R., 9. The complaint in this case contains no such allegation, and under our system of pleadings this is such a defect as cannot be cured by a default taken against defendant through the mistake or inadvertence of his counsel.
The judgment is reversed, with costs, and the cause remanded.
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