Opinion
Appeal from the Ninth District.
The superfluous matter set up in the complaint relates to the sale on execution.
The Court below gave final judgment for defendants on the demurrer. Plaintiffs appeal.
Application denied.
COUNSEL
Tuttle & Bullock, for the Writ.
JUDGES: Field, C. J., delivered the opinion of the Court. Baldwin, J., and Cope, J., concurring.
OPINION
FIELD, Judge
This is an action of ejectment. The case went off in the Court below, upon a demurrer to the complaint. The complaint contains much superfluous matter, but it distinctly alleges prior possession in the plaintiffs, and an entry and ouster by the defendants; and that the defendants are still in possession of the property. There can be no doubt of the sufficiency of these allegations. (See Yount v. Howell, 14 Cal. 465; and Boles v. Weifenback, ante 144.) One point in the demurrer is, that the action is brought to recover two separate and distinct pieces or parcels of land. This objection is fully answered by the provisions of the sixty-fourth section of the Practice Act. It is expressly provided that such causes of action may be united in the same complaint, when they affect all the parties to the action, and do not require different places of trial. When thus united, they must be separately stated. None of these provisions are violated in the present case.
The superfluous matter in the complaint is inserted by itself, and entirely independent of the averments upon which we think the plaintiffs entitled to recover. It was set up to meet a defence which it was supposed would be made to the action; and it may become very material as evidence in this case, but has no proper or legitimate connection with the complaint.
Judgment reversed, and cause remanded for further proceedings.