POTTER v. CARNEY et al., 8 Cal. 574

Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring. This was an action for the recovery of a lot in San Francisco. Two issues were made by the evidence : First, the execution of a lease by defendants. Second, the question of prior possession. On the first issue there was conflict of testimony, and the jury, by implication, found for the defendants, as their verdict for plaintiff is based solely upon the ground of prior possession.

It is contended by the appellants, that under the pleadings, no no evidence of prior possession was admissible, and there would be force in the objection, if an exception to such evidence had >been taken on the trial; this was not done, and the objection cannot be raised here for the first time. It is clear, however, that the evidence on this point is entirely insufficient to sustain the verdict, and that the Court erred in refusing a new trial. Judgment reversed, and cause remanded.