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his answer was in the hands of the clerk of the court before business hours on the morning of the day default was taken; and also that he had a good and perfect defense.

Bodley & Campbell and Chas. H. Marks, for appellant.
Terry, McKinne & Terry, for respondents.




If the affidavit of merits is sufficient, we are satisfied that, under the views expressed in Watson vs. S. F. and H. B. R. R. Company, 41 Cal. 17, the court should have granted the motion to open the default. The answer, which was filed on the same day the default was entered, states facts which, if proved, would constitute a meritorious defense. The statements in the affidavit of defendant, that he is advised that he has a "good and perfect defense," and in the affidavit of his attorney that, in his opinion, defendant has a good defense, although in artificial averments of the fact that he has a defense on the merits, are to be referred to the answer actually filed. In People vs. Rains (23 Cal. 129), the affidavit of the defendant's attorney was to the effect that he had mistaken the day of service, and that he prepared a demurrer to the complaint. The court held that when the affidavit shows that the defense rests on matters appearing on the face of the complaint (by which, of course, is meant matters of defense), which, except for the interposition of a demurrer, would be deemed to be waived, the defense is merely of a technical character, and the affidavit is insufficient. But here an answer was prepared, and the advice of the attorney that defendent had a good and perfect defense was based on a full and fair statement of all the facts of the case. (See defendant's • affidavit.) We think the default should have been set aside.

Judgment and order reversed, and cause remanded.


[No. 5,869.]

[Filed February 19, 1878.]

LIEU LANDS-CONTEST BETWEEN APPLICANTS.–At the time defendant filed his ap

plication in 1876 the Act under which he proceeded had been repealed. Plaintiff in 1875 filed upon the same land. In 1870 the Legislature passed on act to save the rights of purchasers under the repealed law : Held, that defendant's application, however defective, was made valid by the curative statute of March 24, 1870, and he is entitled to purchase the land from the State.

The land is claimed by both parties in lieu of school lands.

The findings show a survey, approval of the survey, and on April 20, 1868, an application to purchase by defendant Somers, under Act of 1863, to the State Locating Agent, who accepted, and township plat was filed in the U. S. Land Office April 22, 1868. At this point in the proceedings the Act of April 27, 1863, page 591, and also the Act of 1858, page 248, relating to State Locating Agents, were repealed absolutely, without reference to pending applications, by Section 71 of the Act to provide for the management and sale of the lands belonging to the State, approved March 28, 1868, page 528. The repealing Act took effect May 28th, sixty days after. An entirely new system was provided for the public lands, under which defendant Somers' affidavits were insufficient.

The application and affidavits were filed with the Surveyor General June 12, 1868; defendant's location approved and certificate finally issued. All proceedings subsequent to June 12, 1868, appear to have been in conformity with the Act of March 28, 1868.

Plaintiff, Wanzer, on the 21st of December, 1875, filed his application to purchase, and on the next day filed with the Register his protest to issuance of a patent to defendant. The Register on May 3, 1876, referred the contest to the District Court for Los Angeles County, whereupon this action was commenced.

Defendant filed a general demurrer which was overruled, and the cause was tried resulting in a judgment for the plaintiff. Defendant appeals upon the judgment roll.

Thomas A. Brown, and John D. Bicknell, for appellant, relied upon the Act for the relief of purchasers of State lands, approved March 27, 1872, and an Act to legalize certain applications for the purchase of lands belonging to the State, approved March 24, 1870, and Political Code, %3573.

Blanchard & Van Fleet and Howard & Hazard, for respondent.


We shall assume that the acts of defendant looking toward the acquisition of title prior to June 12, 1868, when his application was filed in the Surveyor-General's Office, are not to be considered as in any way strengthening his claim.

But that application, however defective, was made valid and effectual by the curative statute of March 24, 1870. The plaintiff's application was not filed until after the last-named date. When, therefore, the defendant made application there were not “two or more applicants for the purchase of the same land or conflicts between claimants.”

The defendant is therefore entitled to purchase the land from the State.

Judgment reversed and cause remanded, with directions to the court below to enter judgment for defendant.

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PLEADING-HUSBAND AND Wife.-Complaint against the husband alleging sale and

delivery of goods to the wife is defective. The averment should charge sale and delivery to the defendant.

This action was commenced in the District Court of Mer

ced County to recover the value of certain clothing, household goods, and supplies, alleged to have been sold and delivered to the wife of defendant Scott, and to have been necessary for the maintenance of the wife and family. The defendant demurred: 1st, that the facts stated did not constitute a cause of action; 2d, defect of parties defendant. The demurrer was overruled, and an answer filed denying the indebtedness, the value of the goods, or that they were necessaries. There was no denial of the sale and delivery.

The case was tried by the court, which found that the contract was made and the credit given to Mrs. Scott, the wife of defendant, and rendered judgment for the plaintiffs. Defendant appealed.

Thos. Bodley and W. P. Veuve, for appellant.
Terry, McKinne & Terry, for respondents.


The complaint does not allege a sale and delivery of goods to defendant.

Whether defendant is liable for the goods furnished to the wife or not, it is certain that plaintiffs can not recover against him their value, in the absence of an averment that they were sold and delivered to him. If she was authorized by reason of her relation to her husband, the nature and character of the goods, and the husband's circumstances, to purchase them, the goods were in law sold to defendant, and the averment should have been to that effect. The averments in respect to furnishing the goods to the wife, etc., might have been omitted as mere evidence, and not the statement of ultimate facts.

The demurrer should have been sustained. Judgment reversed and cause remanded, with direction to the court below to sustain the demurrer to the complaint.

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[No. 4,459.]
[Filed February 19, 1878.]




VERDICT - EXCESSIVE DAMAGES. - Where in an action for trespass the damages

proven are nominal but the verdict is equal to the entire value of the property, the verdict will be set aside.

Appeal from Fifth Judicial District Court, San Joaquin County

Action for damages to turnpike road by the building thereon of a railroad. The case was before the court on appeal, at April Term, 1873, and will be found reported in 45 Cal. 680.

Upon the trial there was some evidence that the value of the land was $6,700, but the testimony was chiefly confined to the receipts for toll. The grounds of reversal will appear in the opinion.

W. L. Dudley and J. H. Budd, for appellant.
Terry & McKinne, for respondent.


Upon the former appeal the decision here proceeded only upon the point that the plaintiff being a corporation de facto, should not have been nonsuited, because not showing itself to have been a corporation de jure.

Upon the return of the cause to the court below, a new trial was had, and resulted in a verdict for the plaintiff for some $5,500.

The plaintiff would seem to have recovered the entire value of the land composing the bed of the road, for the disturbance of which the action was brought; while it is clear that the recovery should have been limited to the amvunt of the damages sustained by reason of the acts of the defendant,

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