I. The continuance was properly denied. The affidavit of defendant showed no diligence in procuring the testimony of the absent witness. A commission ought to have been issued. The cause had been continued at the previous term of the Court on account of the absence of this same witness. As to the paper left at San Francisco, it was purely the fault of defendant; and there was no abuse of discretion in refusing the motion. (Musgrove v. Perkins, 9 Cal. 211 .)
II. The answer admits the value of the goods. (San Francisco Gas Co. v. The City, 9 Cal. 453 .) And it also admits the possession; and this is prima facie proof of ownership. The Court below had, therefore, nothing to do but to instruct the jury as to the amount of damages. (3 Gr. & W. on New Trials, 751; 16 Wend. 663; 7 Id. 160 .)
III. The verification to the complaint is sufficient. There is no law prohibiting the plaintiff's attorney taking the affidavit. The statute expressly declares that the officialseal need not be affixed to an affidavit. (Wood's Dig. 564, secs. 2897-8.)
The other objections are not based on fact. There is a venue to the affidavit. But the complaint and answer were both treated in the Court below as verified; and these objections cannot be waived for the first time in the appellate Court.
JUDGES: Cope, J. delivered the opinion of the Court. Baldwin, J. and Field, C. J. concurring.
OPINION
COPE, Judge
The complaint alleges that on a certain day the plaintiff was the owner and in possession of certain personal property, of the value of $ 1,000; and that the defendant on the same day seized upon and converted it to his own use. The answer denies that on the day specified the plaintiff " was the owner, and lawfully in possession" of the property; and, in relation to the value, says that the defendant has no knowledge, etc.; and therefore denies that it was $ 1,000. The seizure is admitted; and the defense relied upon is a justification under a judgment and execution against one Dryer. The pleadings are verified; and on the trial no evidence was introduced in support of this defense. The Court instructed the jury to render a verdict for the plaintiff, for the value of the property as stated in the complaint, and interest at ten per cent. per annum from the time of the seizure. It is objected that the Court had no right to direct the jury to render a particular verdict, and that the instruction was therefore erroneous. There might be something in this objection if any evidence had been required to enable the plaintiff to recover, but we think the instruction can be supported upon the pleadings alone. The answer, so far as the denials are concerned, is defective and insufficient, and no issue is taken upon the allegations of the complaint, except by confession and avoidance. The burden of proof was upon the defendant, and as no evidence was introduced by him, the plaintiff was entitled to a verdict upon the complaint.
The defects in the answer are so obvious that a general reference to them is all that is required. The denial in relation to the ownership and possession of the property is subject to various objections. It raises an immaterial issue as to time; and, in reference to the possession, amounts simply to a conclusion of law. There is not even the pretense of an issue upon this allegation, except conjunctively, with the allegation of ownership. Each of these allegations is sufficient to sustain the complaint; and an issue presented by a conjunctive denial must be regarded as irrelevant and immaterial. The denial as to value is based upon the want of any knowledge or information on the subject, and the insufficiency of such a denial has already been determined by this Court. ( Gas Company v. City of San Francisco, 9 Cal. 453 .) The seizure of the property being admitted, no evidence was necessary to entitle the plaintiff to recover, and as none was offered by the defendant, a verdict for the plaintiff was the necessary consequence. Under these circumstances, we think the instruction was correct; and even if it were technically erroneous, we should not regard it as sufficient cause to reverse the judgment.
There are several additional points made, but we see nothing in them to justify a reversal. The objections to the verification of the complaint are entirely technical, and should have been taken in the Court below. We cannot tolerate the practice of raising such objections for the first time in this Court. The verification is sufficient in form and substance; and we are not aware of any provision of law making the attorney incompetent to take it.
The original answer is not properly a part of the record, and cannot, therefore, be considered. The amended answer is complete in itself, and the intention, of course, was to supersede the original. Besides, the answers are inconsistent with each other, and cannot be permitted to stand together.
The motion for a continuance was based upon insufficient grounds. The absence of evidence is no cause for a continuance, unless reasonable diligence has been used to procure it. The party must have resorted to the proper legal means for that purpose, or he must show to the satisfaction of the Court that a resort to such means would have been unavailing. Where the evidence is in his own possession, its absence is not excused by showing that through inadvertence he is unable to produce it.
Judgment affirmed.