Darst v. Rush

Citations

• 14 Cal. 81
• 1859 Cal. LEXIS 243

Syllabus

<p>Where plaintiff was nonsuited on the ground that the allegations of the complaint were not sustained by the evidence, and judgment for costs rendered against him, no motion for new trial is necessary.</p> <p>A reference, in a statement on appeal, to the evidence as taken by the Clerk, with the consent of parties, is sufficient, the evidence being in the transcript. The statement need not contain the evidence.</p> <p>Action for damages against defendants, averring that they “ with force and arms, broke and entered ” upon the premises of plaintiff, and damaged them by causing them to be overflowed and covered with earth, gravel, tailings, etc. deposited thereon by the action of running water. Held, that, under our system of pleadings, the words “ with force and arms broke and entered,” do not confine the proof to the direct and immediate damage, as in the old action of trespass ; that the facts, being clearly set out in the complaint, the addition of these words was surplusage.</p>