Anglo American Land Co. v. Sundberg

STURTEVANT, J.

The plaintiff commenced an action to quiet title to two parcels of land located at Larkspur, Marin County, California. It framed its complaint in two counts. The defendants interposed a demurrer as to each count. The trial court overruled the demurrer to the first count, and sustained the demurrer to the second count without leave to amend. Later a judgment was entered up dismissing the cause of action pleaded in the second count. From that judgment the plaintiff has appealed. Under the facts presented in the record we think that the judgment must he affirmed, whether it was erroneous or otherwise, because after an examination of the entire record the court is clearly of the opinion that the ruling of the trial court, if it be conceded to be error, has not resulted in a miscarriage of justice, and in short has not deprived the plaintiff of any substantial right.

The first cause of action pleaded in the amended complaint is a full and complete statement of an ordinary count to quiet title. By overruling the demurrer to that cause of action the trial court properly preserved to the plaintiff all of the rights to which the plaintiff was entitled. In the second count the plaintiff repeated word for word every allegation contained in the first count, and having done so it thereupon proceeded to specify what the plaintiff conceived to be the specific claim or claims of the defendants. In doing so the plaintiff inserted nearly forty folios of alleged defects in the purported proceedings theretofore had

[333]

by the town of Larkspur in an attempt to install certain improvements under the “Improvement Act of 1911” (Stats. 1911, p. 730). Under the decision of the supreme court of this state no duty rested upon the plaintiff to insert such allegations in its complaint, the allegations were not necessary to the sufficiency of its pleadings, and all of said allegations were in the nature of anticipating a defense, and were immaterial matter; and, being immaterial, all of said matters could have been stricken from the pleading if a' proper motion in that behalf had been made. (Code Civ. Proc., sec. 463;

Crook

v.

Forsyth,

30 Cal. 662;