Turner v. Caruthers
California Supreme Court
Appeal from the Eleventh District. Ejectment for a house and lot. The complaint is in the usual form, averring ownership and possession of the premises in plaintiffs, and that they were the homestead.
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Appeal from the Eleventh District. Ejectment for a house and lot. The complaint is in the usual form, averring ownership and possession of the premises in plaintiffs, and that they were the homestead. The answer first sets up that the suit was commenced by the wife in the name of herself and husband, without authority from him and against his knowledge or consent, and asks that the suit be abated, and then goes on to deny the allegations of the complaint, and sets up a sale and deed of the premises from Turner, the husband, to defendant’s lessor. The case was tried before the Court and these…
1Opinion of the CourtBaldwin, J.
Field, C. J. concurring.
The suit having been instituted in the name of the plaintiffs by an attorney of the Court, it is to be presumed prima fade that *433they authorized the attorney to appear and prosecute. It was not matter in abatement that the plaintiffs or either one of them had not given this authority. The proper mode of procedure, if the suit were not authorized, was for the defendant to move the Court upon proper affidavits to dismiss the suit, upon the ground that it was not authorized by those in whose names it was brought. If the attorney, on such a motion and after notice of it,…
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