Opinion
Rehearing denied.
Appeal from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.
COUNSEL:
Stanton L. Carter, Frank H. Smith, and J. A. Louttit, for Appellant.
Byers & Elliott, for Respondents.
JUDGES: In Bank. Sharpstein, J. Ross, J., McKinstry, J., Morrison, C. J., and McKee, J., concurred.
OPINION
SHARPSTEIN, Judge
The complaint states facts sufficient to constitute a cause of action on a street assessment. The law declares that to such a complaint "no answer shall be filed * * * unless the same be verified by oath." (Stats. 1871-2, § 21.) An unverified answer was, in fact, filed. But it was filed in violation of the statute. The plaintiff introduced some evidence, but not enough, in the opinion of the court, to prove all the material allegations of the complaint. No evidence was introduced by the defendants. That introduced by the plaintiff was entirely consistent with the allegations of the complaint, and unless we can treat an unverified answer as sufficient to raise an issue to be tried, the plaintiff was entitled to judgment upon the pleadings. Does the fact of its having introduced evidence tending to prove allegations which were not denied, place it in a worse position than it would have occupied if it had introduced no evidence? If not, upon what ground was the court justified in finding that any material allegation of the complaint was not true?
If the defendants had, in the absence of a denial of any material allegation of the complaint, introduced, without objection, evidence tending to disprove such allegation, it might be held, as it has been in several cases, that the appellant could not be permitted to make that objection for the first time here. But in the absence of any denial of any allegation of the complaint, or of any evidence tending to [5 P. 683] prove that any allegation is untrue, how can a finding that any allegation is untrue in fact be justified?
As the case is presented to us by the record, we think the only question to be considered is whether the complaint states facts sufficient to constitute a cause of action. Of that we have no doubt. Judgment reversed and cause remanded, with directions to the court below to permit the defendants to file a verified answer to the complaint within ten days after the remittitur herein is filed in the court below, and that said court try the issues so raised. But if the defendants fail to file such answer within the time above specified, the court is directed to enter judgment for the plaintiff, as prayed in the complaint.