Livingston v. Morgan , 53 Cal. 23 ( 1878 )

By the Court:

The only respect in which this case is claimed by appellant to differ from that of Pollock v. Cummings, 38 Cal. 683, is in the fact that the complaint here alleges that the plaintiff was the owner of the fences standing upon the land mentioned therein. But this averment added nothing to the complaint or to the cause of action therein set forth, and the gravamen of which was the fact of possession of the land by the plaintiff when- the alleged trespasses were committed by the defendant.

The averment as to ownership of fences might be stricken out, and the cause of action and proof which might have been adduced in its support would be precisely the same.

We think, therefore, upon the views stated in the case referred to, the Justice must be held to have had jurisdiction of the action before its transfer to the Court below.

II. But the judgment for gold coin cannot be supported, and it must be modified accordingly.

The judgment of the Court below is therefore modified by striking therefrom the words “ in gold coin of the United States ” and the cause remanded with directions to make such modification ; the appellant not to recover any costs occasioned by this appeal.