Minturn v. Burr

Field, C. J. delivered the opinion of the Court—Cope, J. concurring. The Civil Practice Act provides that pleadings in Justices’ Courts shall be in writing, and be verified by the oath of the parties, their • [49]agents or attorneys, when the action is for the foreclosure of any mortgage, or the enforcement of any hen on personal properly, or for a forcible or unlawful entry upon, or a forcible or unlawful detention of lands, tenements or other possessions, or to recover possession of a mining claim; and that in other cases the pleadings may be oral or in writing. (Prac. Act, sec. 571.) But unlike its provisions with reference to pleadings in actions in Courts of record, the Act does not require the answer to a verified complaint in an action in a Justice’s Court to controvert specifically the material allegations of such complaint. It is sufficient if the answer deny the material allegations, either generally or specifically. (Prac. Act, sec. 574; Sullivan v. Cary, 17 Cal. 85.)

In the present case the answer, in addition to certain special denials, the form of which is open to criticism, contains a general denial of ah the allegations of the complaint. This was sufficient to create an issue, and to require evidence from the plaintiff. And the evidence produced by him, as contained in the record, discloses a clear case against the defendants, Burr and Whitney. The other defendants do not appear to be connected in any way with the transaction, and as to them the case might have been dismissed. But as to Burr and Whitney the evidence was direct, positive and uncontradicted. It established beyond reasonable doubt that the entry upon the premises was made under, then- direction, agency and procurement, and that it was forcible. The jury found that possession was forcibly taken, but not by the defendants, which the Court held amounted to a verdict for the defendants, and under its direction the finding was drawn up and entered in that form. The jury must have been under the impression that the actual presence of the defendants, assisting in making the forcible entry, was necessary to render them liable, or else have acted in entire disregard of the evidence. And it matters not, so far as the motion for a new trial is concerned, whether the result followed from one cause or the other. The law applicable to the facts was laid down when the case was here on the first appeal. (16 Cal. 109.) We there said that “ the facts should have been left to the jury, for them to determine how and by whose direction, agency or procurement this entry was made, and whether by preconcert and arrangement or