Mountain Democrat. [volume] (Placerville, El Dorado Co., Cal.) 1854-1860, 1859-03-05
GRcPortcd for the DEMOcEATby A. d. wALDHoN, ESQ.,
DISTRICT COURT CALENDAR.
FEBRUARY TENN, 1850.
JrDGE JAS. II. HARDY, PREsIDINO.

JrDGE JAS. II. HARDY, PRESIDING.
MONDAY, February &c.
{. u. CrOwen rs. s. l.. Crowel-Decree Of divorce.
Samuel LrmmOn VI. J. u. Barr and Wife-Judyment
for Plaintiff for &2,U1S 90 and costs, and mOrtgaged
VI. Bartram vs. Il. Rankin-Judgnent for Plaintiff
for 43ss w and property ordered sold under meChAuies
lien.
tiu.s Nichols Vs. Nouges ct al-Tried BY the Court
and held under adVisement.
TUESDAY, March let.
Eagan It al IS. Delaney ct al.-Trisd by the Court
aud held under adNiscmemt.
WEDNESDAY, March I'd.
Eagan ct al W. Delaney ct al-JudEInsnt for plain
tin. for 13OO 70 and possession of mining ground.
RrIrera Hawkins We. Mathew DoTland-Tried by jury
aud verdict for plaintiff for &S|O w.
e.. q. H"oker IS. u. ". LeVan-Answcr stricken out
aud judsm, ut for plaintiff.
THURSDAY, March ID.
Muse. Miller IS. L. i. Lee-R. p. Culver substituted
a. defendant and GAUGE continued.
John scott vs.. 4. 4. Van GurldeF-Demurrcr TO amen
drd complaint argued.
ri. ;. tolcord ct al. vs. D. }. Whittier ct a-DismsS
rd at IlaintIfs' cOpt.
Samuel Il. ThorntOn vs. Mathew DOrand-COntinued
pay ms Mt u costs BY Plaintiff.
Iouth ". Harris & kirk-Ten days further time Civ
IlaTTiS To answer.
Carson vs.. ". Ilolmes-OrdcTcd that attachment is
Iuc against Defendant for contempt.
FRIDAY, March trh.
EJrDGE HARDY gave the following decision on dsmur-
Tcr amended complaint in VI john A..
4. Van GueldeT:
John Scott, Plaintiff, } In the District Court
xof the Eleventh Judicial
\. \. Van GueIder, DeG'nt. District.
The complaint in thia charges that plaintiff and
defendant tenants in u certain real estate
in the county Of IL Dorado that defendant has entered
into the exclusive possession thereof and Ousted plain
tin, and prAys for rcstitutiOn IT the possession
The complaint under confederation 10 amendment
to au original complaint, to which demurrer vas Su'-
tanned a. former day Of this term. aud this cndmen
VAS hlcd by leave Of Court.
The int comp. aint prayed that account might be
had for the rents and Tuts and that partition rule
II the runin'on estate might be ordered.
The defendant again drnIuTS and asBgns several eau
Ut demurrer, neither Of which, in my opinion, is ia
tai to the complaint.
lot. defendant denies the Jurisdiction Of the Court,
b. the demurrer upon which he originally appeared
did notify him that he to the Of
action alleged in this complaint. IL IL to
drte this demurrer whether motion u qaSh
the summons would have bccn maintained not. II
enough tha, he has answ cred the Ly demurrer.
The object Of . summons IL to bring the party nto
Court. and II he defect in the summons ill
avail him.-Smith Curtis, Cal. Rep. 5Sl.
IL 10 true that bare motion To disSS for defective
pTcess il not appearance, but 10 confidently be-
ieN rd that demurrer TO complaint is an appearance
| III Court.
I'd. That the amended complaint, amended, changes
the entire form 81 the actiOn and that such Au amend
mrnt HhOuid lIUt have been permitted.
This amendment made By leave Of the Court when
the Judge Of thi. District presiding, aud shall not
the correctness Of his ruling that
subject. nesies, IL appears that the better practice
would have hcrn to to strike out the allegations
which it i' urged change the nature Of the action
From a careful reading Of the original and amended
complain, Ind that the Of action stated in the
latter i" literally the same as in the foTmeE-the only
difference being in the prayer. The defendant cannot
he Prcudiccd By this. lie only required to answer BY
the amended complaint The precise facts stated In the
original. The bOasted beTalty Of practice would
not be preserved by rule which would alOw him to
complain that lac surprised by change in the form
Of action hrn hc Oy required to answer the
facts in the amended in the original complaint, the
Ony difference being to the character VI the judgment
sought
@ 1t lie alleged that the complaint does not state facts
sufficient constitute Of action. This objection
il not specific did defendant the argument sug
gent the defects But the complaint has been carefully
examined, an it 10 thought that palmer and more cOH-
else statenct Of II action could not well have
been made. The plaintiff IL and has right
To Of real estate. The defendant withhUldS
that posSrssio T,tas exclusive possession himself and
ousts plaintiff. This 10 considered at law giving the
party injured right to redress at the hands Of the
judicial tribunals Of the land.
The fact that the parties tenants in common makes
M difference. One tenant in BY statute has
the right to sue another who holds exclusive possession
| of the common estate.-Acts Of 1855, p 81.
The other grounds Of demurrer do not appear the
face Of the complaint aud IL the facts exist charged
in the demurrer defendant must avail himself Of them
| By answer.
The demurrer is for these OverTuled and de
endant has leave in ten days, payment Oi
costs of the demurrer. JAMES II. HARDY,
District Judge.