Legal Opinion

Billings v. Drew

California Supreme Court

Decided July 1, 1878No. 5671PublishedCited by 13 opinions

Appeal from the District Court, Sixth Judicial District, County of Sacramento. The action is for the recovery of certain personal property. The defense relies upon attachment proceedings and fraud in plaintiff purchasing the property, for the purpose of hindering and delaying creditors. The opinion states the other facts. Defendant appeals.

1Opinion of the Court

The answer sets up inconsistent defenses, and as a party is entitléd to the benefit of inconsistent defenses, the instruction of the Court was erroneous.

An admission in one part of a pleading does not prevail over a denial in another part. (Siter v. Jewett, 33 Cal. 92; Nudd v. Thompson, 34 Cal. 39.)

8. 8. Soil and J. W. Armstrong, for Despondent.

The statute provides that all material allegations in the complaint not controverted by the answer, must for the purposes of the action he taken as true, and it is nonsense to say that the admitted facts are to be taken as true, and still that the jury…

2Cases cited4 opinions

  1. Buhne v. CorbettCalifornia Supreme Court · 1872
  2. Nudd v. ThompsonCalifornia Supreme Court · 1867
  3. Siter v. JewettCalifornia Supreme Court · 1867
  4. Bradbury v. CroniseCalifornia Supreme Court · 1873

3Cited by13 opinions

  1. Stromerson v. AverillCalifornia Supreme Court · 1943
  2. Miles v. WoodwardCalifornia Supreme Court · 1896
  3. Meyers v. MerillionCalifornia Supreme Court · 1897
  4. Botto v. VandamentCalifornia Supreme Court · 1885
  5. McDonald v. S. Cal. Ry.California Supreme Court · 1894

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