Douglas v. Dakin (1873) · DecisionDepot

Douglas v. Dakin

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

California Supreme Court Jul 1, 1873 No. No. 3,704Published

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Holding. The court held that the demurrer was properly overruled because the identity of the parties is presumed from the identity of names, and the judgment roll contained no error.

Issues

Whether the identity of the plaintiff can be presumed from the identity of names in the answer.
Whether the fourth subdivision of the answer is subject to a charge of ambiguity or uncertainty.
Whether the court can consider motions to strike or rulings in the absence of a bill of exceptions or statement on appeal.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The identity of the parties will be presumed from the identity of names.”

“Whatever may be the value of the fourth subdivision of the answer as a defense to the action, it is not subject to the charge of ambiguity or uncertainty.”

“We discover no error in the judgment roll.”

Synopsis

Appeal fbom a Judgment without a Statement. — On an appeal from a judgment, where there is no bill of exceptions or statement, the Supreme Court will not consider the action of the Court below upon a motion to strikeout part of a pleading, or any other matter not appearing in the judgment roll.

Identity of Pabties Pbesumed fbom Identity of Names. — Where William J. Douglas was plaintiff in an action for rent, and the defendant set up a judgment obtained in another Court against William J. Douglas without averring the identity: held, that the identity of the parties is to be presumed from the identity of names.

Ambiguity and Uncebtainty in Pleading. — An answer, in an action against a tenant for unlawful detainer, which avers that a person, not a party to a suit, had formerly brought an action to quiet title to the demanded premises, and that such person was at the time in the actual possession of the premises, claiming title in fee thereto, is not ambiguous or uncertain.

By the Court: This appeal being from the judgment, and there being no bill of exceptions or statement on appeal, we cannot consider the motion of plaintiff to strike out portions of the answer, or the motion for judgment, or the rulings or orders made thereon. The case must be determined upon the judgment roll alone.

The demurrer was properly overruled. Prima facie the W. J. Douglas named in the answer was the W. J. Douglas who is plaintiff in this action. The identity of the parties will be presumed from the identity of names.

Whatever may be the value of the fourth subdivision of the answer as a defense to the action, it is not subject to the charge of ambiguity or uncertainty. The averment that at the date of the commencement of the suit by Elizabeth Douglas against the City and County of San Francisco to quiet her title to the land in controversy, she was in the [52]actual possession of the premises, claiming title in fee thereto as her separate estate, clearly shows her right to institute those proceedings. If she was in no way in privity of possession or title with the plaintiffs in the present action, the proceedings and judgment in her suit against the City and County of San Francisco would perhaps be irrelevant and immaterial, and this portion of the answer subject to be stricken out on motion, or to a demurrer upon the ground that it did not state a defense. But no such demurrer was interposed, and as we have said, the motion to strike out cannot be considered.

We discover no error in the judgment roll.

Judgment affirmed.

Douglas v. Dakin

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