Bolan v. Gallagher

JAMES, J.

Appeal from a judgment entered in favor of the plaintiff.

[1]

The defendants who are the appellants here demurred to the complaint of the plaintiffs and, their demurrer being overruled, no answer was .filed and the judgment followed as a matter of course. It is claimed here that the court erred in overruling the demurrer. The action was brought to secure a decree for the partition of real and personal property. Sections 752 and 752a of the Code of Civil Procedure (added by Stats. 1919, p. 73) provide for such relief and the latter section provides that “real and personal property may be partitioned in the same actioii.” Appellants particularly insist that their demurrer should have been sustained because the alleged causes of action were not separately stated. It is true that the property sought to be partitioned, both real and personal, was described in the single cause of action alleged in the complaint. However, appellants’ demurrer did not include the ground which is sought to be given effect here. Subdivision 5 of section 430 of the Code of Civil Procedure, which section enumerates the various grounds for demurrer, provides that objection may be taken—“5. That several causes of action have been improperly united or not separately stated.” Ground 2 as stated in appellants’ demurrer is “that there is a misjoinder of causes of action, to wit: A cause of action for the partition of real property and a cause of action for the partition of personal property.” Section 431 of the Code of Civil Procedure declares, in part, as follows: “The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it does so, it may be disregarded. ...” The demurrer as presented to the court was properly overruled.

[2]

We find no merit in the contention that, because a certain promissory note described in the complaint as being a part of the property to be .partitioned was not included within the terms of the decree, there is an inconsistency between the allegations of the complaint and the judgment, which amounts to a prejudicial error entitling the appellants to complain. The

[505]

record on appeal does not show what evidence was heard which furnished to the court the data upon which to base the judgment. It may well have been as respondent states, that such evidence showed that the promissory note referred to had been sold prior to the making of the decree, in which case it was properly excluded from the terms of the latter. The presumptions are in favor of the judgment in the absence of an affirmative showing in the record that the decision is erroneous.