Cleland v. Walbridge

Hayne, C. —In this case, the defendant’s demurrer to an amended complaint was sustained. The learned judge filed a document, which is really an opinion and order sustaining the demurrer, but which the parties have called a “judgment.” Subsequently a second amended complaint was filed, and the defendant filed a demurrer thereto. Apparently no action was taken on this demurrer. Nearly three years afterward the plaintiff obtained leave to file a third amended complaint. The defendant moved to strike out this last complaint, and the court granted the motion, and ordered judgment for the defendant, which was entered. The plaintiff appeals from this judgment.

It is to be surmised from some papers printed in the transcript that this motion was made and granted upon the ground that the third amended complaint was the same in substance as the one to which a demurrer was sustained. But the papers referred to are not incorporated in a bill of exceptions, but are simply marked by the judge as having been read on the hearing of the motion. This is not sufficient. The order striking out the complaint was not itself appealable, but was reviewable on appeal from the judgment. (Swain v. Burnette, 76 Cal. 299.) And in such case there must be a bill of excep[360]tions. (Strathern v. Dakin, 63 Cal. 478; and cases cited in section 262 of Hayne on New Trial and Appeal.)

It is true that the judgment recites that a motion to strike out the third amended complaint was made and granted, and that by reason of the law and of said order judgment was given for the defendant. This recital sufficiently informs the appellate court that the complaint was stricken out, and that therefore judgment was entered in favor of the defendant. But it does not show why the pleading was stricken out, or upon what showing; and it must be presumed in support of the judgment that it was properly done, in the absence of a showing to the contrary.

We therefore advise that the judgment be affirmed.

Belcher, C. 0., and Foote, C., concurred.

The Court. For the reasons given in the foregoing opinion, the judgment is affirmed.