Harney v. McLeran

4 P. 884, 66 Cal. 34, 1884 Cal. LEXIS 674

• Court: California Supreme Court
• Decided: October 21, 1884
• Docket: No. 7,666
• Status: Published

Opinion

The Court.

There is no evidence to support the allegation of the complaint that the defendants, McLeran and Porter, were owners of the premises assessed for street-work, and if that allegation was denied in their answer, the motion for a nonsuit, as to them, was properly granted. The denial that McLeran was the owner of the premises, or any part thereof, is explicit. The ownership of Porter is not positively denied; but while admitting that he claims to be the owner of an interest in the premises, the defendants allege that they have not any information or belief on the subject sufficient to enable them to answer the allegation of his ownership, and on that ground, solely, deny it.

Ho motion was made to have this matter stricken out of the answer. But the appellant insists that the decision of the court on a motion for a nonsuit must be viewed as it would be if no attempt had been made to deny the ownership of Porter.

None of the cases cited go to that length. Harney v. Corcoran, 60 Cal. 318, decides that if objection had been made to the filing of an amended answer with this clause in it, the court might in its discretion have sustained the objection.

The denial of the ownership of Porter is not irrelevant. If not sufficiently certain, it might have been demurred to. And we think this was the plaintiff’s proper and only remedy in this case.

Where a plaintiff is nonsuited, findings are not required. (Reynolds v. Brumagim, 54 Cal. 254.)

Judgment and order affirmed.