Schneider

This was a suit to restrain a trespass upon real property, and for damages. The trial court gave judgment for the plaintiff, and the defendants appeal.

The appeal from the order denying a new trial was not taken in time, and must be dismissed.

The appeal from the judgment was not taken within sixty days from its rendition, and therefore no question as to the insufficiency of the evidence can be raised.

The verdict of the jury was merely advisory, and therefore any error that may have occurred in the instructions is immaterial. (Dominguez v. Dominguez, 7 Cal. 426 ; Sweetser v. Dobbins, 65 Cal. 531 .)

The original complaint was superseded by an amended complaint, and all questions as to the sufficiency of the former drop out of the case.

This leaves the question as to the sufficiency of the amended complaint as the main question to be considered. It alleges that the plaintiff was the owner and in possession of half of a quarter-section of land, and then proceeds as follows:—

“That on or about the twenty-ninth day of February, 1888, the defendants, knowingly, maliciously, and wrongfully, came upon said land with a number of teams and men, and began tearing up the soil and…