Hughes v. Wheeler
Before: Foote
Synopsis
Ejectment—Judgment fob Defendant when not Conclusive on Title. —In an action of ejectment, a judgment in favor of the defendant for costs, rendered upon a special verdict that the plaintiff was the owner and entitled to the possession of the land, and that the defendant had not, prior to the commencement of the action, withheld the same from him, is not conclusive against the plaintiff as to his title.
Pleading — Estoppel — Appeal. —The sufficiency of the manner in which an estoppel is pleaded will not be reviewed on appeal, when the plea was treated at the trial as properly made and sufficient.
Instructions — Immaterial Error. — An error of law in an instruction is immaterial, if it appears that the verdict is nevertheless necessarily correct upon the evidence, or that a new trial must have been granted had the jury not returned the verdict it did.
Id.— Repeating Testimony to Jury. —In the absence of any showing to the contrary, it will be presumed that the action of the court, in permitting a portion of the testimony to be read to the jury when they had returned for further instructions, was without prejudice.
Evidence — Objection how Made. —An objection to the admission of evidence will not be considered on appeal, unless the ground of the objection was made known to the court on the trial.
Estoppel—Instructions. ■— Certain instructions on the subject of estoppel, held correct.
Foote, C. Action in ejectment. The jury found, upon particular questions of fact submitted to them,—• 1. That the plaintiff was the owner and entitled to the possession of the quarter-section of land described in the complaint; 2. That the defendant at no time prior to the commencement of the action withheld any portion of that quarter-section of land from the plaintiff; —and returned a general verdict for the defendant.
Thereupon a judgment for costs was rendered in favor [232]of the defendant. From that and an order refusing a new trial the plaintiff appeals.
The plaintiff contends that the judgment for costs is conclusive against him, as to his title to the land described in the complaint, and being opposed to the admissions of the defendant on the trial, cannot stand.
In this he is mistaken. The judgment itself is one for cost's, and by reference to the record and special verdicts of the jury it is made evident that the only matter which is made conclusive by the judgment against the plaintiff is, that the defendant is not in possession of, and does not withhold possession of, any of the land for which the plaintiff brought his action.
Some of the evidence to sustain the special verdict of the non-withholding by the defendant of the plaintiff’s land is to the effect that some years prior to the institution of this suit, the parties thereto, owning adjoining parcels of land, established by agreement or acquiescence the division or boundary line between them, and that the strip of land which the plaintiff sought to recover was upon the defendant’s side of that line, and therefore not within the description of the land for which the action was begun.
The plaintiff contends that no such evidence was admissible under the pleadings, because, as he alleges, no proper plea of estoppel was filed by the defendant.
But we think that a plea was set up by the papers filed on suggestion of diminution of record. The amendment by which this plea was set up was treated at the trial as properly made and as sufficient; and it is now too late to question its sufficiency. (Davis v. Davis, 26 Cal. 23; 85 Am. Dec. 157.)
If the evidence was admissible under the issues, it was proper for the jury to render a verdict thereon, and for the court to give them proper instructions for their guidance.
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