Kuhland v. Sedgwick
Before: Cope
Synopsis
In this case, the answer being insufficient as a denial of the allegations in the complaint, and the Court having instructed the jury to find for plaintiff: Seld, that the instruction was right—no evidence being required on the part of plaintiff.
If such instruction were technically erroneous it would not be sufficient to reverse the judgment.
Where the complaint in replevin averred that on a certain day plaintiff was the owner and in possession of the property, and that its value was $1,000; and the answer denied that on the day specified the “ plaintiff was the owner and lawfully in possession; ” and, as to its value, averred that the defendant has no knowledge, etc., and therefore denies that it is worth $1,000: Held, that the answer is insufficient, because it raises an immaterial issue as to time; and, as to the possession of the property, that it amounts merely to a conclusion of law.
Such an answer raises no issue as to the allegation of “ possession,” except in conjunction with the allegation of ownership, and as each of the allegations is sufficient to sustain the complaint, the issue presented by the conjunctive denial is irrelevant and immaterial.
The denial as to value, being based on the want of knowledge or information, is insufficient.
The attorney of plaintiff, being a Notary Public, may take the affidavit verifying the complaint.
The objections to the verification to a complaint that it was not authenticated by the seal of the Notary; that there was no venue to the affidavit; that there was no evidence that the officer was a Notary Public, etc., being technical, should be taken in the Court below, and cannot be raised for the first time in this Court.
Where an-amended answer is complete in itself, and is inconsistent with the original answer, the two cannot stand together.
Absence of evidence is no ground for continuance, unless reasonable diligence has been used to procure it. The party must have resorted to proper legal means for that purpose; or must satisfy the Court that a resort to such means would have been useless.
Where evidence is in a party’s own possession, its absence is not excused—on motion for continuance—by showing that through inadvertence he is unable to produce it.
Cope, J. delivered the opinion of the Court Baldwin J. and Field, C. J. concurring.
The complaint alleges that on a certain day the plaintiff was the owner and in possession of certain personal property, of the value of $1,000 ; and that the defendant on the same day seized upon and converted it to his own use. The answer denies that on the day specified the plaintiff “ was the owner, and lawfully in possession ” of the property; and, in relation to the value, says that the defendant has no knowledge, etc.and therefore denies that it was $1,000. The seizure is admitted; and the-[127]defense relied upon is a justification under a judgment and execution against one Dryer. The pleadings are verified; and on the trial no evidence was introduced in support of this defense. The Court instructed the jury to render a verdict for the plaintiff, for the value of the property as stated in the complaint, and interest at ten per cent, per annum from the time of the seizure. It is objected that the Court had no right to direct the jury to render a particular verdict, and that the instruction was therefore erroneous. There might be something in this objection if any evidence had been required to enable the plaintiff to recover, but we think the instruction can be supported upon the pleadings alone. The answer, so far as the denials are concerned, is defective and insufficient, and no issue is taken upon the allegations of the complaint, except by confession and avoidance. The burden of proof was upon the defendant, and as no evidence was introduced by him, the plaintiff was entitled to a verdict upon the complaint.
The defects in the answer are so obvious that a general reference to them is all that is required. The denial in relation to the ownership and possession of the property is subject to various objections. It raises an immaterial issue as to time ; and, in reference to the possession, amounts simply to a conclusion of law. There is not even the pretense of an issue upon this allegation, except conjunctively, with the allegation of ownership. Each of these allegations is sufficient to sustain the complaint; and an issue presented by a conjunctive denial must be regarded as irrelevant and immaterial. The denial as to value is based upon the want of any knowledge or information on the subject, and the insufficiency of such a denial has already been determined by this Court. (Gas Company v. City of San Francisco, 9 Cal. 453.) The seizure of the property being admitted, no evidence was necessary to entitle the plaintiff to recover, and as none was offered by the defendant, a verdict for the plaintiff was the necessary consequence. Under these circumstances, we think the instruction was correct; and even if it were technically erroneous, we should not regard it as sufficient cause to reverse the judgment.
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