Osborn v. Hendrickson

Burnett, J., delivered the opinion of the Court—Terry, J., concurring. This case was before this Court at the last January Term, when the judgment of the Court below was reversed, and that Court “ directed to render judgment for the plaintiff for the amount claimed in the complaint, and not denied in the answer.”

The amount claimed in the complaint was six hundred and seventy-six dollars and sixty-seven cents, and seventy-seven dollars and five cents interest. Upon receiving the remittitur, the Superior Court of San Francisco rendered judgment for the sum of seven hundred and ninety-five dollars, being the sum claimed, and interest at ten per cent, per annum, from July 1,1855, to the date of the judgment. From this judgment the defendant appeals.

The present learned counsel of the defendant, who was not the original attorney who drew up the answer, insists that the Superior Court mistook the opinion of this Court, “ because the very foundation of plaintiff's claim is denied, to wit: that the plaintiff was the owner of the house.” He elsewhere assumes that the answer presents two issues:

1. That the plaintiff was not the owner of the house.

2. That he had received full pay for its use.

The plaintiff alleges in his complaint that he, “ on the first day of July, 1855, and for five months prior thereto, was the owner of a certain house, etc.,” and the defendant pretends to meet this allegation by denying “ that the said plaintiff from the first day of July, 1855, and for a long time thereafter, to wit: five months, was the owner,” of the premises mentioned. This frivo[32]Ions and evasive answer seems to have misled the present counsel of defendant, and hence his brief is predicated upon a mistaken state of the pleadings. The complaint having been verified by affidavit, and there being no denial either of the ownership of the house during the period stated, or of the occupancy of the premises by the defendant, there was, in fact, no denial of the amount claimed for the use and occupation of the premises.

The allegation that plaintiff had* “ disposed of his claim for any and all rents to Cohen/-’ and also the general allegation of payment, were simply affirmative statements, which the defendant was bound to prove. The only proof offered was that which was decided by this Court to have been illegal. There being, then, no evidence to sustain the affirmative allegations of the defence, the plaintiff was entitled to judgment. We could not see how the defendant could strengthen his defence, and therefore, could not see any necessity for a new trial. If, however, the defendant had independent proof of payment, which he failed to introduce on the former trial, he should have applied for a modification of the judgment, within the ten days allowed by the rules of this Court. Upon a proper showing that such evidence existed, and a good excuse for not having introduced it, this Court would have modified the judgment, and allowed a new trial in the Court below.