mative in form, is, in fact, a cross-complaint, and the court may treat it as such in its findings.36 § 3814c. Foreclosure of street assessment - answer. In an action to recover a street assessment, where the defendant's ownership of the property assessed is alleged in the complaint and denied by the answer, a nonsuit should be granted if the plaintiff introduces no evidence in support of the allegation.37 An answer alleging that another person, not sued, owns an undivided interest in the land is in legal effect merely a denial of the averment of the complaint as to ownership by the defendant, and is not an averment of new matter casting the burden of proof upon the defendant.38 In such an action, an averment in the answer that the defendant had not sufficient information or belief on the subject of his ownership of the property assessed, to enable him to answer the plaintiff's allegation of his ownership, and, therefore, denies the same, is a sufficient denial, where no motion is made to strike it out.39 3815. Vendor's lien. An answer in an action to enforce a vendor's lien, which set up a homestead exemption, is demurrable when it does not contain such a statement of facts that the court can determine whether the homestead right existed or not.40 The defendant answers to the complaint, and alleges: That plaintiff did not cause his said mortgage to be recorded as alleged, or at all, and that this defendant had no notice, actual or constructive, of the existence of plaintiff's said mort 36 Wittenbrock v. Parker, 102 Cal. 93; 41 Am. St. Rep. 172; also, White v. Patton, 87 Cal. 151. 37 Harney v. McLeran, 66 Cal. 34. 38 Robinson v. Merrill, 87 Cal. 11. 39 Harney v. McLeran, 66 Cal. 34. 40 Pratt v. Delevan, 17 Iowa, 307. An action to foreclose a vendor's lien must be commenced in the county in which the land, or some part thereof, is situated. And the Superior Court of a county in which no part of the property is situated is without jurisdiction of such action, and a demurrer to the complaint, upon the ground that the court has no jurisdiction of the subject-matter of the action, should be sustained. Urton v. Woolsey, 87 Cal. 38; Southern Pacific R. R. Co. v. Pixley, 103 id. 118. gage, at or before the time this defendant took his said [conveyance or incumbrance]. The defendant answers to the complaint, and alleges: ... did not, by deed duly executed, convey all his right or title, as such mortgagee, in and to the said premises, in manner and form as the said plaintiff hath in his said complaint alleged, or at all. § 3818. Nonjoinder of assignee of the mortgagor. [TITLE.] Form No. 913. The defendant answers to the complaint, and alleges: That after the execution of said mortgage in the complaint described and on the ........ day of .... 18.., he, by deed duly executed, conveyed said mortgaged premises in fee to one R. S., who is now living and still holds said title. The defendant answers to the complaint, and alleges: That the said A. B. did not assign or transfer to the said defendant the note in said mortgage mentioned, or the money due thereon, in manner or form as the said plaintiff hath in his said complaint alleged, or in any manner, or at all. § 3820. Equity of redemption not assigned. [TITLE.] Form No. 915. The defendant answers to the complaint, and denies: That the said A. B. did convey his equity of redemption in and to the said premises in said complaint described in manner or form as the said plaintiff hath in his said complaint alleged, or in any manner, or at all. The defendant answers to the complaint, and alleges: 18.., did recover in the [state the court] in and for the county of .... for the sum of aforesaid, a judgment against the said A. B., dollars, his debt, and dollars, his costs in said action. ... II. That the said judgment is in full force in law, and wholly due and unpaid, and is and has been a subsisting lien on said premises from the said ... day of 13... The defendant answers to the complaint: That the plaintiff was not, is not now, and never was possessed of the premises described in the complaint, or any part thereof. The defendant answers to the complaint: That the defendant's premises have not been used as a slaughter-house, either as alleged or otherwise. Or: That defendant did not erect said [dam], as alleged, or otherwise, or at all. § 3824. Diversion of water. In an action to recover damages for the diversion of water of a stream from plaintiffs' mills, an averment as to the precise quantity of water required for the use of the mills, and to which plaintiffs claim to be entitled, is an immaterial averment; and a recovery of damages would not establish plaintiffs' right to the exact quantity of water claimed, so as to be res adjudicata in a subsequent suit.1 1 McDonald v. Bear River & Auburn W. & M. Co., 15 Cal. 145; see § 2398, ante. In an action to maintain a riparian right to water, a defense of a prescriptive right of diversion is sufficiently pleaded by setting up the section of the Code of Civil Procedure under which the right was acquired. Water Co. v. Richardson, 72 Cal. 598; and see Montgogmery v. Locke, id. 75. § 3825. Irrelevant allegations. In an action to abate a nuisance caused by running a ditch for the conveyance of water across the land of the plaintiff, the defendant set up, in answer, that it was mineral land belonging to the United States, and that the ditch was for mining purposes. Such allegations are irrelevant, and constitute no defense.2 § 3826. Issues raised. If the plaintiff sues to recover damages for flowing sand and sediment upon land averred in the complaint to be his, and the answer denies that plaintiff owns the land, and that defendant wrongfully flowed the sand and sediment upon the land, without denying that he caused the same to flow upon the land, it does not admit that defendant caused such material to flow upon the plaintiff's land.3 In such case, the plaintiff's ownership of the land is put in issue.* § 3827. Obstructing a public highway. In the case of a commissioner suing the owner of the land for obstructing a public highway, it is the undoubted right of the defendant to question the legal existence of the highway. Such a right, however, can not be asserted by him in any case in a Justice's Court. When called upon to plead, if he only intends to deny the fact that he placed the obstruction in the road, he may rely upon a general denial of the complaint. If he wishes to justify upon the ground that he had the right to put the fence across it as owner of the land, he must allege that he is such owner; and this is sufficient to raise a question of title in a Justice's Court, for such an answer can mean nothing unless the defendant intends to question the public right of way over his land.5 § 3828. Want of care. The want of reasonable care on the part of another, who is injured by the breaking, can not be set up in defense to an action for damages for the injuries thus suffered in the breaking of defendant's dam. 2 Weimer v. Lowery, 11 Cal. 104. 3 Wood v. Richardson, 35 Cal. 149. 4 Id. 5 Little v. Denn, 34 N. Y. 452. 6 Fraler v. Sears Union Water Co., 12 Cal. 555; 73 Am. Dec. 562. CHAPTER III. PARTITION. § 3829. Pendency of action to dissolve partnership. [TITLE.] Form No. 919. The defendant answers to the complaint: That the premises of which the plaintiff seeks partition were purchased by the plaintiff and defendant as partners, with partnership funds, and for partnership purposes in carrying on and conducting the business of [hardware merchants] as such partners, and the same is still so used for said purpose. And that prior to the commencement of this action, to-wit, on the .. day of ... 18.., this defendant comcourt, against the plain menced an action in the tiff, for a dissolution of said partnership and an accounting, and which said action and accounting involve the real property described in the complaint, and which said action is still pending and undetermined.1 §3830. Answer, what to contain. The defendants, who have been personally served with the summons and a copy of the complaint, or who have appeared without such service, must set forth in their answer, fully and particularly, the nature and extent of their interest in the property; and if such defendants claim a lien upon the property, by mortgage, judgment, or otherwise, they shall state the original amount and date of the same, and the amount remaining due thereon, and whether the amount has been secured in any other way or not; and if secured, the extent and nature of the security, or they shall be deemed to have waived their right to such lien.2 3831. Disclaimer. In an action of partition a defendant can not claim that the action be dismissed as to him, on the ground that his answer disclaims any interest in the land unless he has made the disclaimer in absolute and unconditional 1 For a fuller form, see Danvers v. Dorrity, 14 Abb. Pr. 206. 2 Cal. Code Civ. Pro., § 758. |