Stites v. Gater — 5 Cal. Unrep. 389

Majority

p. 389

STITES et al. v. GATER.

S. F. No. 45;

June 2, 1896.

45 Pac. 185.

Headnote

Ejectment — Pleading—Answer—Admission.—In ejectment for two and twelve hundredths acres of land plaintiffs alleged they were owners, and that defendant excluded them from possession. Defendant’s answer denied every allegation “except as hereinafter stated,” and then admitted defendant was in possession of one and sixty-five hundredths acres, and that he withheld the same from plaintiffs; but

p. 390

denied the possession or withholding of the remainder. Held, that the answer did not admit that plaintiffs owned forty-seven hundredths of an acre of the land.

APPEAL from Superior Court, Sonoma County; S. K. Dougherty, Judge.

Ejectment by A. H. Stites and others against J. E. Gater. Prom a judgment for defendant, plaintiffs appeal.

Affirmed.

Moreland & Norton (Rutledge & Pressley of counsel) for appellants; Albert G. Burnett and J. R. Leppo for respondent.

Ejectment for two and twelve hundredths acres of land. The pleadings were unverified. Plaintiffs alleged that they are the owners of the land described in the complaint, and that defendant excludes them from the possession thereof. By his answer defendant denied generally “each and every allegation in said complaint contained except as hereinafter stated.” He then expressly admitted himself to be in possession of one and sixty-five hundredths acres of the premises demanded by plaintiffs, and that he withholds the same from them, but denied the possession or withholding of the remainder. The court found that plaintiffs are not the owners of the lands claimed by them, or any part thereof, and rendered judgment in defendant’s favor. Plaintiffs claim here that the findings and judgment contravene the pleadings, because, they say, the answer admits that plaintiffs own forty-seven hundredths of an acre of the land. The allegation of ownership in the complaint is put in issue by the general denial of the answer, and the denial is not qualified by the subsequent admissions. Plaintiffs were therefore put to their proofs as to all the land described in their complaint. The appeal is without merit, and the judgment should be affirmed.

•We concur: Yanclief, C.; Belcher, C.

For the reasons given in the foregoing opinion the judgment is affirmed.