Swift v. Canavan
Synopsis
FnrorsG of Facts.—If affirmative matter is set up in the answer which constitutes a valid defense, the Court must find on the issues thus raised, if it tries the case without a jury.
Trespass.—If a city owns and is seized and possessed of land, and an act is passed by the Legislature appointing Commissioners to improve it, and authorizmg them to take possession of it, the Commissioners may, in a careful manner, remove from the premises one who occupies the same as a servant and employee of the city, and may also remove his buildings.
By the Court : The affirmative matter set up in the answers of the defendants, if true, constituted a valid defense to the action, and it was the duty of the Court below to find upon the issues thus presented. Among these issues was the question whether, at the time of the alleged grievances, and before and after that time, the City and County of San Francisco was the owner, and seized and possessed of the locus in quo, and whether the plaintiff and his family occupied the premises by the permission of and as the servants and employees of said city and county, and not otherwise. On these material issues the findings are silent, and until they were disposed of, no judgment could be properly pronounced.
The judgment is, therefore, reversed, and the cause remanded, with an order to the Court below, on the testimony taken on the trial, or, if further testimony be required, then upon the evidence already in and such other as may be adduced, to find upon all the affirmative matter set up in the answers, and if such matter shall be found to be true, to enter a judgment for the defendants.
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