Majority
p. 435[No. 6244.] M. J. O’CONNOR v. GEO. W. FRASHER et als.
Headnote
-Ambiguous Pleading.—A pleading on the part of a defendant not showing what portions of it are intended as a legal defense to a complaint in ejectment and what portions are intended as a cross-complaint, will be held bad on demurrer for ambiguity.Insufficient Binding.—A finding of probative facts, which are not necessarily conclusive of the facts in issue, is not sufficient to support the judgment.
Appeal from the District Court of the Seventeenth Judicial District, County of Los Angeles.
Suit in ejectment. Defendants answered, denying all the allegations in the complaint, and set up certain facts upon which they asked to have the title of plaintiff adjudged void. The plaintiff demurred to the cross-complaint; the demurrer was overruled, and judgment was rendered for the defendants. The plaintiff appealed. The other facts are stated in the opinion.
John D. Bicknell and Edward R. Taylor, for Appellant.
Gould & Blanchard, for Respondents.
The demurrer to the defendants’ pleading should have been sustained. It is impossible to determine from the face of the
p. 436
pleading what portion of it was intended to constitute a legal defense to the cause of action averred in the complaint, and what portion was intended as a cross-complaint.
Treating the whole pleading as a cross-complaint, the demurrer should have been sustained. (Thomas v. Lawlor, ante, p. 405.)
Finally, even if we were authorized to say that the denials (separated from the other matter) made issues at law, the Court did not find upon such issues, but only found probative facts which were not necessarily conclusive of such issues. (Coveny v. Hale, 49 Cal. 552 .)
Judgment and order reversed, and cause remanded for a new trial.
Cases cited
- Coveny v. Hale 49 Cal. 552 p. 436