¶1delivered the opinion of the Court—Cope, J. and Baldwin, J. concurring.
¶2The Appellant, Rogers, seeks a reversal of the judgment on two grounds: 1st, error in the refusal of a continuance, and, 2d, error in awarding damages.
¶3The affidavit upon which the continuance was asked, set forth the materiality of the testimony of the witness absent in Utah Territory, but did not state that the same facts which the defendant expected to establish by him could not, to the knowledge of the defendant, be proved by other persons resident within the reach of the process of the Court. The premises are situated within the county of Sacramento, and if McDougall, as alleged, distinctly marked their outer boundaries, and resided upon, cultivated and improved a portion of them, it is highly probable that evidence of the fact could have been readily found there. The absence of any averment on the point was a fatal defect in the affidavit. 1
¶4The complaint alleges a possession of the premises by the Appellant at the execution of the Sheriff's deed to the plaintiff, and claims damages to the amount of five hundred dollars. The Court found the defendant was in possession from the sale by the Sheriff, six months previous to the execution of the deed, and awarded damages for their occupation for an entire year, at sixteen hundred dollars. The Respondent thereupon filed a remittitur of the excess over the amount claimed. The Appellant now insists that as the Court found the damages for the entire year, there is no evidence of any damages for a less period. We do not think the position tenable. In the absence of proof or suggestion to the contrary, we will presume, in support of the judgment, that the value of the occupation was the same each part of the year. The proof shows that the plaintiff was entitled to sixteen hundred dollars, but owing to defective allegations in the complaint and the amount demanded, or, perhaps, on the ground that a claim for the occupation intervening the sale and the execution of the deed and a claim for the subsequent occupation could not be united in the action of ejectment, he could only recover a portion of the same.
¶5Judgment affirmed.
¶6See Clarke v. Boyreau, (post.)