Meeker v. Dalton

Belcher, C. C. The action is ejectment to recover possession of a lot of land in the town of Lodi. The complaint is in the form usual in such actions. The answer denies all the allegations of the complaint, and alleges that defendant is the owner of the land sued for and entitled to the possession thereof, and has been such owner and so entitled to possession since the first day of December, 1881, and then, "further answering said complaint, and by way of cross-complaint,” alleges certain facts which show an equitable defense. The plaintiff demurred to all that part of the " answer called a cross-complaint, upon the ground that the same does not state facts sufficient to constitute a defense to said action,” and his demurrer was overruled. The case was tried before a jury upon special issues, and answers were returned to all the questions submitted. The court adopted the findings of the jury, and made certain other findings, and among others, that, while the plaintiff had the legal title to the property sued for, he was not entitled to recover the possession thereof, but defendant was entitled to maintain his possession.

Judgment was thereupon entered that defendant recover from plaintiff his costs of suit; and from that judg[156]ment the plaintiff appealed, the case coming here on the judgment roll.

It is objected for appellant that that part of defendant’s pleading which follows the words “by way of cross-complaint” must be treated as only a cross-complaint, seeking affirmative relief, and cannot be used as an answer; that as a cross-complaint or as a defense, it is insufficient, because it contains no allegation that defendant did not buy the land for less than its true value on account of the situation, or that he paid anything for it, or that he was imposed upon as to what he was buying; that the part of the pleading which precedes the words quoted is insufficient, because it contains no averments showing an equitable defense,—and in short, that each part of the pleading must be treated as separate and distinct from the other, and must stand or fall on its own merits.

It is also further objected that the findings are contradictory and inconsistent.

We do not think these objections can be maintained. The so-called cross-complaint is preceded by the words "further answering said complaint.” The plaintiff demurred to it on the ground that it did not state facts sufficient to constitute a defense. And at the trial it appears to have been treated as a part of the answer. Having been so treated there, it is too late to raise the question here. (Erkins v. Ayer, 58 Cal. 313.) We think the words “and by way of cross-complaint” may be treated as surplusage, and disregarded. “ It is immaterial what the defendant called his pleading, whether he designated it an answer or cross-complaint, its character will be determined by the court. It is the facts set up in the pleading which make it an answer or cross-complaint.” (Holmes v. Richet, 56 Cal. 311; 38 Am. Rep. 54.) Taken as a whole, the pleading seems to us sufficient, certainly when tested by a general demurrer.