Etchas v. Orena

Citations

• 121 Cal. 270
• 53 P. 798
• 1898 Cal. LEXIS 890

Syllabus

<p>Pleading—Action Against Executor—Denial on Information ob Belief. In an action against an executor, facts alleged in the complaint to the effect that the plaintiff rendered services to the testatrix, their character and value, the amount paid thereon and the amount still due, and that the testatrix promised the plaintiff to pay for the same by making a provision for her in her will, are not presumably within the knowledge of the defendant, and, under section 437 of the Code of Civil Procedure, he may place his denial thereof upon the ground of a want of information or belief upon the subject.</p> <p>Id.—Form of Denial.—In such a case, the answer is sufficient in form, if it refers to the several paragraphs of the complaint containing such allegations by number, and avers that the defendant has no information or belief on the subject mentioned therein sufficient to enable him to answer the allegations therein contained, “and he therefore places his denial of each of said allegations on that ground, and denies each and all of the same and every part thereof.”</p> <p>New Trial—Conditional Order Granting.—The trial court may set aside a verdict, if in its opinion it is not sustained by the evidence, or may direct a new trial unless the plaintiff will remit a portion of the verdict, if in its opinion the verdict is for more than the evidence will justify.</p> <p>Id.—Affirmance of Order Granting New Trial—Appeal from Judgment. An order granting a new trial has the effect to vacate the judgment, and the affirmance of the order on appeal leaves nothing in the court below upon which an appeal from the judgment can operate.</p>