Eagan v. Delaney (1860) · DecisionDepot

Eagan v. Delaney

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1860Published

Before: Baldwin

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Holding. Plaintiffs who specifically plead the origin and deraignment of their title in a complaint are bound to prove that title as averred and cannot recover on a different title over the defendant's objection.

Issues

Whether plaintiffs are bound to prove the specific title averred in their complaint.
Whether a new trial should be granted when defendants are surprised by a variance between the pleaded title and the proof offered at trial.

Disposition. Reversed

Quotations verified verbatim against the opinion

“having done this, it would seem they should be held to prove it as averred, at least in substance; and that they cannot, against the defendants’ objection, recover on another and a different title.”

“We think, under the circumstances, a new trial should have been granted.”

Synopsis

Whebb, in suit for a mining claim, plaintiff in his complaint states the particular facts constituting his title, and on that title seeks a recovery, and the answer denies such title, plaintiff must prove his title as averred, at least in substance, and he cannot, against defendant’s objection, recover on another and different title.

And where, in such case, plaintiffs were permitted to prove and recover on a title other than the one so set up, it was error in the Court below to refuse a new trial, the motion for which was based on affidavit of defendant that he was taken by surprise arising out of the frame of the pleadings, and that he could have rebutted plaintiffs’ case but for this surprise.

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

This was a suit for the recovery of a mining claim.

The plaintiffs stated in the complaint their title, its origin and deraignment; and upon the title, thus set out, claimed a recovery. The answer denied the title thus* set up. Upon the trial the plaintiffs proved, as they claim, a title accruing to them in a particular way, subsequent in origin and different in the mode of acquisition from that counted on in the complaint. Perhaps it was not necessary for the plaintiffs to set out the particular facts constituting then' title in this action; but having done this, it would seem they should be held to prove it as averred, at least in substance; and that they cannot, against the defendants’ objection, recover on another and a different title.

The defendants made an affidavit, on motion for a new trial, on the ground of surprise, arising from the frame of the pleadings, and averring that they could have introduced testimony rebutting the plaintiffs’ case but for this surprise.

We think, under the circumstances, a new trial should have been granted.

Judgment reversed.

Eagan v. Delaney

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