[No. 4841.]
JOSEPH PONCE v. CHARLES McELVY, Administrator of the Estate of PIERRE Le COAT, Deceased, A. H. EDDY and HENRY POWELL.
A Pleading as Evidence.—A complaint, which has been superseded by an amended complaint, is not admissible in evidence on behalf of the defendant, on the trial of the cause in which it was filed.
Ebeoe is Pbesumed to Injuee.—Error being shown, injury is presumed, and the respondent must show that no injury has been sustained.
Appeal from the District Court, Tenth Judicial District, County of Yuba.
*223This 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objection of the plaintiff, permitted the defendant to read in evidence a complaint filed in the canse which had been superseded by an amended complaint.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.
G. N. Sweeny and Caldwell & Caldwell, for the Appellant.
Belcher & Belcher and Niles Searles, for the Respondent.
By the Court:
The 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.
Judgment and order reversed and cause remanded for a new trial.-