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Harney v. McLeran

Supreme Court of California
Oct 21, 1884
66 Cal. 34 (Cal. 1884)

Opinion

         Department Two

         Appeal from a judgment of the late District Court of the Twenty-third Judicial District, and from an order of the Superior Court of the city and county of San Francisco refusing a new trial.

         COUNSEL:

         J. M. Wood, for Appellant.

          William Leviston, for Respondents.


         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.

         No 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.


Summaries of

Harney v. McLeran

Supreme Court of California
Oct 21, 1884
66 Cal. 34 (Cal. 1884)
Case details for

Harney v. McLeran

Case Details

Full title:DANIEL HARNEY, Appellant, v. THOMAS G. McLERAN et al., Respondents

Court:Supreme Court of California

Date published: Oct 21, 1884

Citations

66 Cal. 34 (Cal. 1884)
4 P. 884

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