Opinion
Department One
Appeal by defendant Schaden from a judgment for the plaintiff, and from an order denying a new trial in the Superior Court of the County of Sacramento. Denson, J.
COUNSEL
A. C. Freeman, for Appellant.
L. S. Taylor, for Respondents.
OPINION The Court:
The action is ejectment. The answer contained a general denial, which put in issue the alleged possession of defendants. It also, by way of a separate defense, admitted defendants' possession, and alleged certain matters in connection therewith, which defendants claimed constituted a valid defense to the action. On the trial, the plaintiff failed to prove possession of the premises on the part of the defendants, for which reason, among others, the latter moved for judgment of nonsuit.
Proof of defendants' possession was essential to a recovery by the plaintiff. The general denial contained in the answer put in issue all of the material averments of the complaint. The admission of possession contained in the special defense must be confined to that defense, and this, irrespective of the question whether the matters contained in that plea could or could not have been proved under the general denial. (Nudd v. Thompson , 34 Cal. 39.)
Judgment and order reversed, and cause remanded for a new trial.