Ponce v. McElvy

Decided July 1, 1876

California Supreme Court · decided 1876-07-01

This is the second appeal. The case, on the former appeal, is reported in 47 Cal. 154. The pleadings were verified. On the trial, the court, against the objection of the plaintiff, permitted the defendant to read in evidence a complaint filed in the canse which had been superseded by an amended complaint. The defendant recovered judgment, and the plaintiff appealed.

Relies on Mecham v. McKay

Decided 1876-07-01

By the Court:

¶1The court below erred in permitting the original complaint to be read as evidence against the plaintiff. (Mecham v. McKay, 37 Cal. 154.) It is the rule, well settled here, that an error against the appellant being shown, injury to him is presumed, and that it devolves upon the respondent in such a case to show that no injury has in fact been wrought. In the condition of the record of this case, we are not satisfied that no injury was done the appellant by the error adverted to.

¶2Judgment and order reversed and cause remanded for a new trial.-