of the property at the time of the taking by defendant. The answer denied this allegation, and, in addition, averred affirmatively that the property was, at that time, owned and possessed by a third person; it was held that this averment was but another form of denial, and not new matter, which under the system of replication formerly in force was admitted by failure to reply.40 § 3728. Prayer. In an action to recover personal property, to enable the defendant to obtain the value of the property on judgment of dismissal against the plaintiff for failure to appear, the answer must contain some allegation or prayer relative to the change of possession from defendant to plaintiff. The judgment of return or value is in the nature of a cross-judgment, and must be based upon proper averments. If the plaintiff takes the property, the defendant must claim its return in his answer to enable the court to give the judgment in the alternative form.42 § 3729. The same [TITLE.] defendant part owner. The defendant answers to the complaint, and alleges: That, at the several times mentioned in the complaint, the defendant was and still is the owner of an undivided half of said goods, wares, and merchandise; and defendant was then and still is in the possession of the whole of said goods. § 3730. Property in defendant. Property is a good plea in replevin, but must be specially pleaded. A plea in replevin 40 Woodworth v. Knowlton, 22 Cal. 164. In an action of claim and delivery, a defendant who has wrongfully taken possession of the property can not set up as a defense that other persons who are not defendants have a lien on the property which entitles them to its possession. Laughlin v. Thompson, 76 Cal. 287. 41 Gould v. Scannell, 13 Cal. 430. 42 Id.; Pico v. Pico, 56 Cal. 459; Banning v. Marlean, 101 id. 238. An answer praying for the return of the property, or the value thereof in case a return can not be had, and for damages and costs, seeks affirmative relief, and a judgment of dismissal by the plaintiff, entered by the clerk after such answer is filed, is void, although an order of dismissal had been entered upon the register of actions before the filing of the answer. Acock v. Halsey, 90 Cal. 215. 43 Dermott v. Wallach, 1 Black, 96. 44 Dickson v. Mathers, Hempst. 65. that the property was not in the plaintiff is informal, but sufficient, and admits proof of property in the defendant or a stranger. The omission of a similiter is immaterial;46 but the defendant can not allege that the plaintiff has taken from him other property than that mentioned in the complaint, and ask or obtain judgment for its return.* 47 § 3731. Justification of taking by defendant as sheriff. Form No. 902. [TITLE.] I. That on the The defendant answers to the complaint, and alleges: Joe Doe was, and from thence until the 18.., one day of 18.., remained, the sole owner of all the prop erty described in said complaint. ... 18.., an against II. That on the ........ day of action was duly commenced by one the said John Doe, in the Superior Court of the county of state of California, to recover the sum of dollars, alleged to be due for [state object of action]. III. That on the said date a summons in due form was issued in said last-named action, and on said date was duly served upon said John Doe by the defendant, as the sheriff of the county of ..... by delivering to him personally a true copy thereof, attached to a copy of the complaint therein, at the [state place]. IV. That on said date a writ of attachment was duly issued in due form in said last-named action, after the issuance of the summons therein, and placed in the hands of the defendant, as sheriff as aforesaid. That on said date said sheriff delivered a true copy of said writ of attachment to .... .., in whose possession the property described in said complaint then was, together with a written notice signed by said sheriff, indorsed on said copy of said writ of attachment, and directed to said 45 Dermott v. Wallach, 1 Black, 96; see, also, Rogers v. Arnold, 12 Wend. 30, 34, 35; Siedenbach v. Riley, 111 N. Y. 560. An answer which denies the ownership of the plaintiff is not obnoxious on a general demurrer, although other irrelevant matters are set up therein as a defense. Laughlin v. Thompson, 76 Cal. 287. 46 Rogers v. Arnold. 12 Wend. 30. 47 Lovensohn v. Ward, 45 Cal. 8. notifying him that all the moneys, goods, credits, effects, debts due or owing, or any other personal property in his possession or under his control, belonging to said John Doe, were attached by virtue of said writ of attachment, and not to pay over or transfer the same to any one but him, the said sheriff. V. That thereafter, and on the ...... day of 18.., judgment was duly made, rendered, and entered in said last-named action, in said Superior Court, against said John Doe and in favor of said ... for the sum of ..... dollars. day of VI. That on the ..... 18.., an execution was duly issued in due form in said Superior Court, under and by virtue of said judgment, which execution was on said last-mentioned date placed in the hands of the defendant as sheriff, for service. VII. That said sheriff executed the same by delivering to said personally, on the .... ..... day of ..... 18.., at a true copy of said execution, and a notice in writing, notifying said ... that all moneys, goods, credits, effects, debts due or owing, on any property in his possession or under his control, belonging to the said John Doe, were levied upon by virtue of said writ of execution, and not to pay over or transfer the same to any one but him, the said sheriff, and by delivering to the said John Doe personally, on the ....... day of ..... at 18... a true copy of said writ of execution and notice, together with a description of the property levied upon. VIII. That said sheriff, by virtue of said writ of execution, duly levied upon, on the ........ day of ... . . ..., 18.., all the right, title, and interest of said John Doe in and to the property described in the complaint, the same then being in the possession of said. and being the sole prop erty of said John Doe, by taking all of said property into his possession, and by delivering to said on the .... day of .... 18.., a true copy of said writ of execution, together with a description of all of said property, and a written notice that said property, and all the right, title, and interest of said John Doe therein, was levied upon, and by delivering to said John Doe personally on the at day of ... 18... a true copy of said writ of execution, description, and notice. ....... day of .... IX. That said sheriff, on the 18.., duly advertised all of said property in accordance with law by posting three notices of sale, particularly describing said property, in three public places. in .., advertising said property to be sold at public auction in view thereof, at [state place of sale], on between the hours of and that on said day all of said described property was by said sheriff, at the hour of .... and at the place aforesaid, exposed for sale at public auction, and was sold in separate lots or parcels to the highest and best bidders for cash, the whole thereof being sold for the sum of which said sum, less the sum of sheriff's costs, was on the ..... day of credited on said execution and judgment. ... ', 18.., X. [Denies that plaintiff was the owner or in possession of said property.] The defendant answers to the complaint, and denies: I. That the plaintiff is the owner of the [lots of land] described in the complaint, or any part thereof, or was ever seised or possessed of the same, or any part thereof, or entitled to the possession thereof at any time or at all. II. Denies that the said plaintiff has any estate therein, or ever had. III. Denies that the said plaintiff has been damaged by said defendant's withholding the said premises, or the possession thereof, in the sum of dollars, or in any other sum, or at all. IV. He denies that the annual value of the rents and profits of the premises described in the complaint is the sum of dollars, or any other or greater sum than dollars. § 3733. Essential denials. Unless the answer denies the allega tions of the complaint, they are admitted without further proof, damages included. Thus, where the complaint charged that on a day mentioned the plaintiffs were lawfully seised and possessed, and had the right of possession, of a certain tract of land, and the defendants afterwards entered into and upon the said tract, and ousted plaintiffs therefrom, the answer, in response to these allegations, averred that the defendant was not guilty of the supposed trespasses and ejectment in the complaint mentioned, nor of any part thereof; it was held that the answer raised no issue;2 and where the defendant further alleged that he was not in possession of the lands and tenements described in the complaint, or any part thereof, it was held that the allegation of the complaint must be taken as confessed.3 In an action of ejectment, where the complaint alleges possession in the defendant, a denial in the answer in the following words is not sufficient to put in issue the question of possession: "Defendant denies that he has unlawfully, wrongfully, and in violation of plaintiff's rights, had possession," etc. This denial might be true, and yet the defendant be in possession. The defendant was called on to answer not only the character of the possession, but the fact of possession. A denial that the plaintiff has suffered damage in the exact sum claimed by him is insufficient." An allegation in a verified complaint that "defendants wrongfully and unlawfully entered upon and dispossessed" plaintiff is not sufficiently denied by a denial that defendants wrongfully and unlawfully entered and dispossessed plaintiff, because such denial admits entry and ouster. Where, in an action of ejectment, the complaint did not directly aver a seisin or ownership of the premises by plaintiff, but alleged that the plaintiff, by location, survey, and certain other acts, acquired possession; and the answer denied these acts, except the survey, and denied that plaintiff acquired possession by location, "or in any other manner;" it was held that the allegation of prior possession was sufficiently denied by the answer. If the entry and ouster 1 Patterson v. Ely, 19 Cal. 28; McLaughlin v. Kelly, 12 id. 221. 2 Schenk v. Evoy, 24 Cal. 113. 3 Id. 4 Burke v. Table Mountain Co., 12 Cal. 403. The averments of possession and ouster, in this case, were held to be insufficiently denied. See statement of facts. Smith v. Doe, 15 Cal. 100. 5 Huston v. T. & C. C. T. R. Co., 45 Cal. 553. • Busenius v. Coffee, 14 Cal. 91. 7 La Rue v. Oppenheimer, 20 Cal. 517. |