Bossen v. Bean

BURNETT, J.

The appeal is from the judgment and purports to be upon the judgment-roll, but the judgment-roll is not complete since it does not contain the second amended answer, ■ one of the pleadings upon which the parties went to trial. Indeed, said answer does not appear in the transcript at all and there has been no suggestion of diminution of the record. The action was brought to recover the possession of a certain number of cattle or their value in case delivery could not be had. The original answer and the first amended answer are printed in the transcript, from which it appears that defendant admitted the ownership of plaintiff, but claimed the right to the possession of the cattle by virtue of the assignment of a chattel mortgage, of a judgment for a certain amount and of a claim for pasturage. Plaintiff demurred to each of said answers on various grounds and also moved to strike out certain portions thereof. The motion was granted and the demurrer in each instance was sustained. Instead of relying upon his first amended answer, appellant chose to file

[295]

another pleading, and hence this second amended answer and the complaint are the only pleadings that could be considered by this court

(Colton Land & Water Co.

v.

Swartz,

99 Cal. 278 [33 Pac. 878];

Bray

v.

Lowery,

163 Cal. 256 [124 Pac. 1004]), but, of course, we cannot consider this second amended answer becouse wo do not know its character or contents.

Indeed, since the record does not contain a copy of the pleadings upon which the findings were made and the judgment entered it cannot be said that we have been furnished with a transcript, and under rule 2 (176 Pac. vii) and the decisions of the supreme court it would seem proper to dismiss the appeal.

(Hart

v.

Plum,