Roche v. Campbell

4 Colo. 254

• Court: Supreme Court of Colorado
• Decided: October 15, 1878
• Status: Published

Opinion

Elbert, J.

This was an action of ejectment brought by the appellant against the appellee.

The objection, that trial was had without any plea by the defendant, is not well taken. The record recites that issue was joined, andas the statute prescribes that the defendant shall plead the general issue only,” it is to be presumed in favor of the regularity of the proceedings, that this plea was in. The plaintiff in ejectment, although he declare for the whole, may recover any distinct part or parcel of the premises. Ballance v. Rankin, 12 Ill. 420; Holmes v. Seeley, 17 Wend. 75.

The premises claimed by the plaintiff embraced about thirty acres. Of this land the defendant only claimed a portion one hundred by one hundred and fifty feet.

It is unnecessary to decide whether on the evidence the plaintiff should not have had a verdict for the entire premises. In view of a new trial we forbear to express any opinion on this point.' Clearly he was entitled to such portion as was not claimed by the defendant, and the jury should have so found. In this the verdict was against the evidence, and the court erred in overruling the motion for a new trial.

The judgment of the court below is reversed, and the cause remanded for a new trial.

Reversed.