Duke v. Thornbury

LANGDON, P. J.

This is an appeal by the defendant from a judgment against her upon a promissory note executed and delivered by her to the plaintiff. The appeal is presented to us upon the judgment-roll alone and it is contended that the general and special demurrer of the defendant to the complaint should have been sustained and that the judgment must be reversed because of the failure of the trial court to find upon certain issues presented by the pleadings. The plaintiff set out in full in the complaint the note sued upon and also alleged that he had received from the defendant as collateral security for the payment of said note a certain promissory note of John L. Stickel, which note was also set out in full in the complaint.

It must be conceded to the appellant that the allegations in the complaint as to the nonpayment of the note upon which recovery was sought were ambiguous and insufficient and that the special demurrer attacking them upon these grounds should have been sustained. However, after the court had overruled the demurrer, defendant answered, admitting the execution of the note sued upon and denying that defendant had failed to pay the same. This, of course, would cure any defective allegations in the complaint upon these matters. The error of the trial court in overruling the demurrer would not warrant a reversal of this judgment after a trial upon the merits and after the defendant had

[507]

put in issue by her answer all matters going to the substantial rights of the parties. In the case of

Alexander

v.

Central L.

M.

Co.,

104 Cal. 532, 536 [38 Pac. 410, 411], it was said: “Aside from these reasons, if we concede the complaint defective in this regard by reason of uncertainty, yet that uncertainty is not such as demands a retrial of a ease which has gone to judgment upon the facts. It is not in all cases where error has been committed by trial courts in overruling demurrers to complaints upon the grounds of ambiguity or uncertainty that this court will order a reversal of a judgment based upon a trial of the issues made by the complaint and answer. The same rule applies to errors of this character as is invoked as to all other errors of the court. It must not be mere abstract error, but it must be prejudicial and injurious error in order to avail appellant, for otherwise he has no cause of complaint. It is apparent to the court from this record that no harm resulted to appellant by reason of the order of the court overruling the demurrer. The denials of the answer are full and complete. . . . ” (See, also,