Patterson v. Ely

         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.