Hooper v. Smith (1916) · DecisionDepot

Hooper v. Smith

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal May 15, 1916 No. Civ. No. 1541.Published

Before: Ellison

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Holding. The court held that a complaint alleging an indebtedness on a specific date is sufficient to state a cause of action, as the law presumes the continued ownership of that debt by the plaintiff at the time of filing without requiring an express allegation to that effect.

Issues

Whether the failure to provide notice of an order overruling a demurrer can be reviewed on appeal without a bill of exceptions.
Whether a complaint alleging indebtedness on a date prior to filing sufficiently states a cause of action without explicitly alleging ownership at the time of filing.

Disposition. affirmed

Synopsis

APPEAL from a judgment of the Superior Court of Solano County. W. T. O’Donnell, Judge.

The facts are stated in the opinion of the court.

ELLISON, J.,

pro tem.

— The complaint in this action was filed January 20, 1915. The first paragraph thereof alleges that the plaintiff is a copartnership. The second paragraph is: “That on the 1st day of January, 1915, the defendant above named was indebted to plaintiffs above named in the sum of five hundred and fifty dollars and 42/100 ($550.42) on an open boob account for goods, groceries, wares and merchandise sold and delivered by plaintiffs above named to defendant above named, between the 1st day of September, 1911, and the 31st day of August, 1914, at defendant’s special instances and requests.” The third paragraph is: “That said defendant'has not paid the same, nor any part thereof” and the prayer is for judgment for the amount alleged in the complaint as due.

To this complaint a demurrer was interposed by the defendant. March 22,1915, the court made an order overruling

[461]

the demurrer and giving the defendant ten days to answer the complaint. April 5, 1915, no answer having been filed, the default of the defendant was entered and judgment in favor of the plaintiffs and against the defendant for the amount prayed for in the complaint was made and entered. The first paragraph of the judgment so entered reads: “In this action the defendant, Sparrow Smith, having failed to appear and answer plaintiffs’ complaint herein, and the legal time for answering having expired, and the default of said defendant in the premises having been duly entered according to law, now at this day on application of Francis C. Mclnnis, attorney for said plaintiffs, it is ordered,” etc. From the judgment as entered the defendant has brought this appeal upon the judgment-roll without any statement or bill of exceptions.

In his opening brief he states that he relies upon two points for a reversal, viz.: 1. “No notice was given of the order overruling the demurrer as required by section 476, Code of Civil Procedure, and the clerk had no authority to enter the judgment,” and 2. “That the complaint does not state facts sufficient to constitute a present cause of action.”

Appellant’s first point cannot be considered on appeal from the judgment in the absence of any bill of exceptions. This is clearly decided in

Hooper v. Smith

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Synopsis

ELLISON, J.,

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