Johnson v. Visher

Vancliee, C. — Action of ejectment, the complaint alleging that plaintiff is owner of the demanded premises, that defendant wrongfully ousted her from and took possession thereof, “ and now retains possession of the same from plaintiff, to plaintiff’s damage in the sum of five hundred dollars,” and “ that the rental value of said real estate is the sum of fifteen hundred dollars, or thereabouts, per annum,” and prays judgment for the possession, and “ for the sum of two thousand dollars damage.”

The answer of the defendant denies plaintiff’s title, right of possession, and all damages, and denies that the value of the rents and profits exceeds two hundred dollars per annum, and for further answer, alleges that defendant has been in the peaceable and uninterrupted [312]possession of the land for more than five years next before the commencement of this action, claiming the same adversely by farming the same, etc., and that plaintiff’s alleged cause of action is barred by section 318 and by section 338 of the Code of Civil Procedure. The answer also alleges other affirmative matter as a defense to the action.

The case was tried by a jury, whose verdict was: “ We, the jury in the above-entitled cause, find for the plaintiff, and judgment in the sum of ($1,175) eleven hundred and seventy-five dollars.”

Whereupon it was adjudged by the court that plaintiff have and recover from the defendant the possession of the demanded premises, and “the sum of $1,175, rents and profits,” and $74.25 costs.

The defendant brings this appeal from the judgment on the judgment roll without a bill of exceptions.

1. Appellant contends that neither the complaint nor the verdict is sufficient to support the judgment.

The complaint, as against a general demurrer, warrants a judgment for the possession of the demanded premises, and for the value of the rents and profits during the period of the wrongful withholding. It was not necessary that there should have been an averment that the defendant had received the rents and profits. (Patterson v. Ely, 19 Cal. 28; Sullivan v. Davis, 4 Cal. 291.)

The questions as to what was the value of the rents and profits, and as to what was the period of wrongful withholding, must have been submitted to the jury, whose verdict must be presumed to have been justified by the evidence.