Dimick v. Campbell

By the Court, Sawyer, J.: This is an appeal from the judgment, and there being no statement on appeal, we can only examine such questions as arise on the judgment roll. The affidavit and notice of motion to strike out defendant’s answer, and affidavit of service of said notice, constitute no part of the judgment roll, and are improperly in the record. (Abbott v. Douglass, 28 Cal. 295.) Disregarding these documents, as we are compelled to do, and looking to the judgment roll alone, it cannot be determined upon what ground the District Court struck out the defendant’s answer. We cannot presume error, and the record does not show that the Court erred in striking out the answer. The judgment, therefore, cannot be reversed on this ground.

The affidavit of service of summons we think sufficient. The affiant states the facts which would make him a competent witness on the trial of the action, and an averment that he is a competent witness would only be the expression of his opinion upon the subject, and would add nothing to the force of the facts already stated.

Whether the Court examined witnesses as to the damages, does not appear from the record. The general sum claimed in the complaint was not for use and occupation merely, but damages. The plaintiff alleges his damages at two hundred dollars, and demands judgment for that sum, as damages. There is no error disclosed in awarding two hundred dollars damages.

On the record properly before us, we think the judgment must be affirmed, and it is so ordered.