Jones v. Spears (1873) · DecisionDepot

Jones v. Spears

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

California Supreme Court Jul 1, 1873 No. No. 3,813Published

Before: Count

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Holding. The court held that a jury instruction requiring the plaintiff to prove a demand for the return of property was erroneous because the defendant's answer already admitted that a demand had been made.

Issues

Whether the trial court erred in instructing the jury that the plaintiff was required to prove a demand for the property when the defendant's answer admitted such a demand.

Disposition. Reversed and remanded

Synopsis

Pboof of Facts Admitted in Answeb.—The plaintiff need not prove facts alleged in the complaint which are admitted in the answer.

Pboof of Demand in Bepbevin.—If the complaint in replevin avers a demand made for the property, and the answer admits it, a demand need not be proved.

By the Count: • 1. The verdict and judgment were in favor of the defendant, notwithstanding that the answer admitted that the [21]defendant had in his possession some forty-seven head of the sheep of the plaintiff sued for in this action.

2. A demand made by the plaintiff upon the defendant for the delivery of the sheep sued for, is admitted in the answer, and it results that the first instruction asked by defendant and given by the Court, to the effect that the plaintiff could not recover in the action without proving that he had made such demand, was erroneous.

Judgment and order denying new trial reversed, and cause remanded. Remittitur forthwith.

Jones v. Spears

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