Anderson v. Black
Before: Foote
Synopsis
Findings — Equitable Averments in Complaint—Admissions in Answer—Verdict — Judgment.—In an action to recover the possession of real property, and for an injunction, where a verdict is rendered in favor of the plaintiffs, upon which judgment is entered, no findings are necessary upon the equitable averments of the complaint, if they are not denied by the answer.
Mining Claim—Action for Possession—Monuments—Notice—Evidence— Cross-examination. — The action was brought to recover the possession of a certain mining claim. On the trial, a witness for the plaintiffs was asked on cross-examination as to the location of a side-line monument and notice. On his examination in chief, he had not testified as to such matters. Held, that the question was not responsive to the examination in chief, and was properly disallowed.
Id.—Sufficiency of Location—Marking Boundaries—Instruction.— In such an action, the question whether the location of the plaintiffs was so distinctly marked on the ground that its boundaries could he readily traced is for the jury; and where there is evidence to that effect, the court should not instruct the jury that the omission to erect a monument at a certain corner of the claim would he fatal to the plaintiffs’ location.
Id. — Excessive Location—Validity of cannot be First Questioned on Appeal. —An objection to the validity of the location on the ground of the extent of the claim refused consideration because not taken at the trial.
Evidence—Conflict of—Verdict. —Where the evidence is conflicting, a verdict will not be disturbed on the ground that it is not justified thereby.
Id.—Evidence Tending to Show III Will of Witness—Rejection of when not Error. — On the trial, one of the plaintiffs, when testifying as a witness in his own behalf, was asked on cross-examination if he had not on a certain night gone with shot-guns upon the premises in controversy, while the defendants were in the peaceable possession thereof, and forcibly dispossessed them. The court disallowed the question. Held, that the question was proper as tending to show that the witness was biased or entertained ill will against the defendants, but that its rejection was without prejudice, as the witness had previously admitted entertaining ill will towards one of the defendants.
Foote, C. This action was instituted for the purpose 'of recovering the possession of specific real property, a mining claim, with damages for the withholding thereof, and for a temporary injunction pending the action.
The verdict of the jury was in favor of the plaintiffs for the recovery of the possession of the property sued for, without damages. It does not .appear from the record whether or not any injunction had been granted.
From the judgment rendered in the cause and an order' refusing a new trial the defendants appeal.
The first point made by them is, that the cause was one which involved equitable matters, as well as those of’ law, and that the court entered its judgment upon the' general verdict of the jury, without any findings.
The only matters of fact which were set up in the' complaint as equitable in their nature, and entitling" the plaintiffs to a temporary restraining order pending the action, were set up in the fifth paragraph of the complaint.
[228]Those allegations were the only basis upon which a temporary injunction was claimed against the defendants, and were to the effect that the latter were continuing, and threatening to continue, to mine and extract ores and valuable metals from the plaintiffs’ alleged premises, yet they were not denied in the answer. The only effort made in that direction was a denial that the defendants had extracted ores or valuable metals from the premises sued for, to the plaintiffs’ damage. Thus no equitable issue was raised by the pleadings upon which it became the duty of the court to make a finding.
But that tribunal, it is urged, erred in sustaining the plaintiffs’ objection to a question, upon cross-examination, put to the witness Silver by the defendants’ attorney.
The question was this:—
“ Please point out with reference to that excavation (on plaintiffs’ map) where that side-line monument is.”
The objection was that it was not responsive to the examination in chief.
It appears that the witness had testified in chief to nothing indicating the existence of any side-line monument; the action of the court in the premises, therefore, was proper.
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