¶1In Geary v. Simmons, 39 Cal. 224, it was held a court is justified in granting a nonsuit, after the evidence on both sides has been heard in a case where, if the motion had been denied and a verdict found for the plaintiff, it would have been set aside as not supported by the evidence. If the case' before us had gone to the jury upon the evidence in the transcript, it would have been the duty of the court to set aside a *50verdict in favor of plaintiff on motion. It comes within the rule laid down in Geary v. Simmons.
¶2We think it proper to say, however, that the practice of moving for nonsuit after the defendant’s evidence is in should rarely be resorted to. Especially is this so when, as in the case at bar, the plaintiff introduced evidence to sustain all the averments of the complaint, as against a mere trespasser, and the materiality of establishing an immediate delivery and actual and continued change of possession only appeared after the defendant had made out his affirmative defense; that he was sheriff and took the property under process, etc.
¶3Judgment and order affirmed.