Gates v. Kieff , 7 Cal. 124 ( 1857 )

Murray, C. J.,

delivered the opinion of the Court.—Burnett, J., concurring.

The first error assigned by the appellants, is the order of the Court below, in overruling the demurrer to the complaint. The ground of the demurrer is, that the complaint improperly joins two distinct causes of action, or rather, that it blends together a declaration in a civil action and a bill in chancery. The complaint is inartificially drawn, but at the same time is substantially correct; it sets out in the first place a cause of action in trespass, and concludes with a prayer for an injunction.

The appellant admits that, under our system, a party may declare for a tort, and at the same time ask for the equitable interposition of the Court, to protect the subject-matter in litigation, until the case is tried, but contends that there must be a severance of the two in the complaint, and that the prayer for equitable relief should commence with the recitation, “ And for a further cause of action,” etc., or, “ The plaintiff represents, ” etc. Such pleading would undoubtedly be more satisfactory than the loose system that obtains in most of the Courts of this State, and if law and equity were inseparably mixed together in a complaint, it would undoubtedly be demurrable. Such is not the casé in the present instance; the only objection to the complaint rests in the fact that there are no express words, as required by the appellant, showing where the declaration in trespass leaves off, and the bill in equity begins. This objection is too technical to be maintained, under our system of practice.

The case of Mayo v. Madden, 4 Cal., relied upon by the appellant, is not at all analogous to the one before us.

The next error assigned is that the premises are not sufficiently described. This assignment is not supported by the record.

The next objection is to the admission of the map “A,” in evidence, because the protractions of certain lines were made by the deputy surveyor, and not the county surveyor, who made the original survey and map. Both the witnesses swear that the protractions are properly made, and it is difficult to see how this objection can be maintained. If the whole map had been compiled from the field-notes of the county surveyor, it would have been admissible under the circumstances, both officers swearing that the calculation, made upon particular data, was correct.

Again, it is contended that the Court erred, in refusing Uaroty, one of the defendants, who filed á separate answer, "a separate trial. If any error was committed in this respect, it was cured by the fact that a nonsuit was entered as to him, and he was allowed to testify on behalf of the defendants. There was no error in admitting the regulations in evidence. The motion for a nonsuit was properly overruled, as the evidence was sufficient to warrant the Court in Submitting the case to the jury.

Judgment affirmed.