Summary
In Patterson v. Ely, 19 Cal. 36, the verbal agreement was not entered of record until after the trial had begun, and in Hawes v. Clark, 84 Cal. 272, although the minutes contained no record of the agreement, the court nevertheless enforced it, notwithstanding the objection upon that ground.
Summary of this case from Smith v. WhittierOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 19 Cal. 28 at 37.
Appeal from the Seventh District.
Ejectment by Frisbie and Patterson against Ely and fifty-seven other defendants, for a tract of land in Sonoma county, containing over 15,000 acres, with a prayer for an injunction to restrain waste.
The complaint alleges that on the fourth of August, 1859, the plaintiffs were, and ever since have been and still are the owners in fee simple of the premises, and entitled to the possession of the same; that on the fifth of August, 1859, the defendants wrongfully and unlawfully entered into possession of the premises and have ever since wrongfully and unlawfully continued and now are in such possession, and wrongfully and unlawfully withhold the possession thereof from plaintiffs; and " that the value of the use and occupation, rents and profits of said premises since the fifth day of August, 1859, is and has been $ 10,000," and prays judgment for the possession and for $ 10,000 damages. Then follow the allegations upon which the equitable relief by injunction is sought. The complaint is verified, the verification being as follows:
[" State of California,]
ss.
[" City and County of San Francisco.]
" Wm. H. Patterson, one of the plaintiffs, being sworn, says the foregoing complaint is true of his own knowledge, except as to the matters therein stated on the information and belief of plaintiffs, and as to those matters he believes it to be true.
" Wm. H. Patterson.
" Sworn to before me, July 23d, 1860.
[Seal.] " Sam'l Hermann,
" Notary Public."
The defendants united in a single answer, which, after setting out all their names, is as follows: " Sued and impleaded in the above entitled action, each for himself separately answers the complaint filed herein against them, and each for himself generally and specially denies each and every allegation in said complaint contained, and avers that the same are all and singular untrue. Wherefore, the defendants each and all pray for separate verdicts on the trial of this action, and for judgment against the said plaintiffs, and for such other relief as they may be entitled to receive."
On the trial, the plaintiffs introduced a patent of the United States, embracing the premises in controversy, issued to the heirs of Jose G. Pina upon a confirmation of a grant to him from the Mexican Government, under the Act of Congressof March 3d, 1851, and traced title to themselves from the patentees. The grant upon which the patent was issued was made to Pina October 14th, 1843, by Micheltorena, then Governor of California, and was duly approved by the Departmental Assembly. The recitals in the patent show that the petition of the heirs for the confirmation of their claim under the grant was presented to the U.S. Board of Land Commissioners on the fifth of August, 1852; that the claim was confirmed by said Board June 26th, 1855; that the decree of the Board was affirmed by the U.S. District Court on the ninth of March, 1857; that the Attorney General of the United States having given notice that an appeal would not be prosecuted, the said District Court, on the second of April, 1857, entered a decree that the claimants have leave to proceed upon the decree of that Court as upon a final decree; and that in April, 1858, an official survey was made under said decree by directions of the U.S. Surveyor General for California, and was by him approved on the fourth of October, 1859.
Upon this approved survey and the decree of confirmation, the patent was issued.
For proof of damages plaintiffs relied on the pleadings, contending that all the allegations of the complaint were, under the statute, admitted by the answer, stating, at the same time, that by a verbal stipulation between the parties, made two weeks before, the answer was to be regarded as duly verified.
Defendants' counsel then protested that defendants were taken by surprise at this construction of the answer, on the alleged ground that fifteen days previously, when the demurrer was overruled and defendants' counsel was considering the propriety of amending the answer and having it verified so as to avoid any question as to its sufficiency, the verbal stipulation referred to was made between the counsel of the respective parties, whereby defendants' counsel understood that it was unnecessary to take any trouble on that account, and that the sufficiency of the answer would not be questioned on the trial; while now it is claimed that the stipulation was only that the answer, the general issue on file, should be considered as duly verified. Defendants' counsel moved the Court, on the ground of surprise, to be allowed to amend and verify the answer so as to answer the charges of the complaint.
The Court then decided that under its rule no notice could be taken of a verbal stipulation between counsel, and no action of the Court could be predicated thereon; whereupon plaintiffs' attorney, with leave of Court, had entered in the minutes of the Court by the Clerk, what he stated to be the exact and only stipulation in relation to the defendants' answer, and the verification thereof made by plaintiffs, or any of plaintiffs' attorneys or counsel, with defendants or either of the defendants' counsel, which said entry was: " That the defendants' answer on file should be treated for all purposes of the action as if sworn to or verified by defendants." To this entry no objection was then made by defendants' counsel. Plaintiffs' counsel then made an affidavit that plaintiffs were not prepared with evidence upon the question of damages, whereupon the motion to amend was denied, defendants excepting. Defendants offered no evidence, but insisted on separate verdicts as to each defendant.
The Court then charged the jury to the following effect: " 1st. That plaintiffs were entitled to recover the entire possession of the premises sued for against all of the defendants jointly, and directed the jury so to find; and 2d, that the plaintiffs were entitled to recover the full amount of the damages sued for in the complaint, to wit: $ 10,000 against all of the defendants jointly, and directed the jury so to find." To each of which instructions defendants excepted. Verdict for plaintiffs, the damages being assessed at $ 10,000 and judgment accordingly. Defendants moved for a new trial for alleged errors of law occurring at the trial, insufficiency of the evidence to justify the verdict, and " accident and surprise which ordinary prudence could not have guarded against, by which the defendants were materially injured and prevented from having a fair trial; " and supported their motion by affidavits stating the circumstances under which the verbal stipulation was made, and that their impression from such stipulation was, that plaintiffs in waiving the verification to the answer also waived all objections to the sufficiency thereof. The affidavits do not allege that defendants have any merits, or could produce any evidence in diminution of damages. The only allegation on this subject is by one of the attorneys for defendants, that, as he " is informed and believes, the amount of damages thus assessed against the defendants was and is excessive, and far more than could be obtained upon a fair trial of this action; and that the said defendants have had great wrong and injustice done to them by reason of the said surprise and the consequent judgment against them."
The Court made an order that in case the plaintiffs, within twenty days after service of a copy of the same, " remit the total amount of money damages over the sum of one dollar, then, and in that case the judgment shall stand, and the motion for new trial be denied; but if plaintiffs shall refuse or neglect to remit as aforesaid, then the motion to set aside the verdict and judgment and for a new trial shall be granted."
Thereupon plaintiffs refused so to remit, notified defendants of such refusal, and appealed to this Court from the order.
COUNSEL:
W. W. Stow, for Appellants.
I. The verification to the complaint complies substantially with the statute. (Prac. Act, sec. 55.)
II. The answer is but a general denial, and does not put in issue any material fact alleged in the complaint. (Stewart v. Street , 10 Cal. 372; Curtis v. Richards & Vantine , 9 Id. 33; White et al. v. White , 11 Id. 69; Dewey v. Bowman , 8 Id. 145; Humphreys v. McCall , 9 Id. 59; Mitchell v. Steelman, Id. 369.)
III. The allegations of the complaint being admitted under the statute, by the general denial, authorized the verdict of the jury. (Smith v. Billett , 15 Cal. 23, 26; Hunt v. The City of San Francisco , 11 Id. 250; Payne v. Treadwell , 16 Id. 220.)
IV. The order of the Court granting a new trial was erroneous. Had plaintiffs accepted the terms, and remitted the entire amount of the damages over one dollar, it would have deprived them of all right to recover the damages, or rents and profits, which the pleadings admit they have sustained. If the plaintiffs had proved the damages exactly as stated in the complaint, and the jury had found a verdict therefor, the verdict could not have been set aside. Upon a proper case, plaintiffs have as much right to damages as to possession. There is no distinction between plaintiffs' right to retain the verdict and judgment for the possession, and the verdict and judgment for the damages. The right to the latter is as much admitted by the pleadings as the right to the former.
V. The verdict and judgment should not have beenset aside on the ground of surprise. 1st. Because there is no showing that defendants have a defense. 2d. Because there is no showing that the averments of the complaint are not strictly true. 3d. Because the answer was in its present form deliberately put in. If defendants were mistaken in the law, or in the legal effect of their answer, it is no ground of relief. (Musgrove v. Perkins , 9 Cal. 211.)
VI. Defendants not having severed in their answer, and not having defended for any particular portion of the tract, plaintiffs had a right to a general verdict against all of them. (McGarvey v. Little , 15 Cal. 27; Lick v. Stockdale , 18 Id. 219.)
JUDGES: Field, C. J. delivered the opinion of the Court. Baldwin, J. and Cope, J. concurring.
OPINION
FIELD, Judge
Field, C. J. delivered the opinion of the Court on the petition--Baldwin, J. and Cope, J. concurring.
When this case was considered and decided by the Court, there was no brief on the part of the respondents on file. The time allowed for filing briefs had elapsed weeks previously. Since the decision was rendered, the respondents have filed their brief, with a petition for a rehearing, stating as an excuse for their delay, that they were to have five days time to answer the briefs on the other side, after service of a copy of the same, and that no such service has been made upon them. A provision to that effect is not inserted in the order of submission, and we cannot look beyond the record of the Clerk. Had such provision been contained in the order, we should not hesitate to grant a rehearing, without reference to the merits of the application in other respects.
We have, however, carefully examined the brief of the learned counsel of the respondents, and have considered the authorities cited with as much attention as if they had been presented before the decision; and after such examination and consideration, we must adhere to the decision rendered.
1. The fifty-fifth section of the Practice Act does, it is true, declare that " in all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes it to be true." But this section is to have a reasonable interpretation; if the pleading does not contain a statement of any matters on information or belief, there can be no occasion for any expression of belief in the affidavit as to any such matters. The object of the verification is to insure good faith in the averments of the party. If he aver matters positively, the verification will be sufficient if his affidavit state that the pleading is true of his own knowledge; if he aver matters " upon information and belief," or " upon information or belief," the verification will be sufficient, if his affidavit state that as to the matters thus alleged he believes the pleading to be true. To require anything further would be to sink the evident spirit and object of the statute into a mere observance of its letter.
It was not necessary that the verification should have been made by both of the plaintiffs. The affidavit of one of them was sufficient.
2. The damages in the case were assessed by the jury. The allegations of the complaint being, under the statute, taken as true for the purposes of the action, constituted conclusive evidence of the extent of those damages. The finding of a jury based upon an admission of the parties by pleadings or otherwise, is not less an assessment than if the finding were made upon conflicting evidence on the subject.
3. The allegation of the value of the " use and occupation, rents and profits" of the premises for the period during which the defendants were in the wrongful possession and excluded the plaintiffs, was sufficient to charge the defendants without any averment that they received such rents and profits. These terms " rents and profits" are not used in a technical sense. The whole averment is in effect only that the value of the use of the premises, whilst the plaintiffs were excluded from their enjoyment, was the amount stated--a very proper averment as the basis of the damages claimed for the wrongful detention of the property.
The other positions of the respondents were fully considered in the opinion rendered.
Petition denied.