From Casetext: Smarter Legal Research

Moyle v. Porter

Supreme Court of California
Jan 1, 1877
51 Cal. 639 (Cal. 1877)


         Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.

         Action to quiet the title to a part of block 127 on the Potrero Nuevo, city and county of San Francisco. When the cause was called for trial, the plaintiff moved to dismiss the action. The court denied the motion. The defendants recovered judgment and the plaintiff appealed.


         Douthitt & McGraw, for the Appellant.

         Williams & Thornton and E. D. Sawyer, for the Respondents.

         OPINION          THE COURT

         The " cause of action" set forth in the complaint was that the defendants claimed as estate or interest in the premises of which the plaintiff averred himself to be in the possession, and the " subject of the action was the adverse claim, estate or interest," set up by the defendants.

         The answer of the defendants did not amount to a counter-claim. It stated the facts essential to a complaint in ejectment against the plaintiff, and demanded that the possession of the premises be awarded to the defendants. This was neither the statement of a cause of action arising out of the transaction set forth in the complaint, nor one connected with the subject of the action in the sense of the statute. ( Code Civil Procedure, Sec. 438.)

         The motion of the plaintiff to dismiss the action should, therefore, have been sustained.

         Judgment reversed and cause remanded, with directions to dismiss the action.

Summaries of

Moyle v. Porter

Supreme Court of California
Jan 1, 1877
51 Cal. 639 (Cal. 1877)
Case details for

Moyle v. Porter

Case Details

Full title:J. W. MOYLE v. NATHAN PORTER et al.

Court:Supreme Court of California

Date published: Jan 1, 1877


51 Cal. 639 (Cal. 1877)

Citing Cases

Carpenter v. A. Hewel

         The cause of action set up by the defendant did not constitute a counter-claim. (Code Civ. Proc. §…

Wood v. Jordan

He insists that by his answer he seeks affirmative relief, and that under section 581, subdivision 1, of the…