Clifford v. Allman

Appeal from Judgment Dismissing Action — Review of Evidence after Sixty Days — Non-appealable Intermediate Order or Decision —Striking out Complaint. — Under section 956 of the Code of Civil Procedure, an order or decision striking out a complaint is not appealable but may be reviewed upon appeal from the final judgment dismissing the action; and section 939 of that code does not apply to such intermediate order or decision, or preclude a review of the sufficiency of the evidence to support it when the appeal is taken from the judgment of dismissal after the lapse of sixty days.

Id. —Bill of Exceptions—• Specification of Insufficiency of Evidence. — Section Ü48 of the Code of Civil Procedure, requiring an exception to the verdict or decision upon the ground of insufficiency of the evidence to support it to specify the particulars in which the evidence is alleged to be insufficient, has no application to a bill of exceptions to an intermediate non-appealable order or decision involving the merits or affecting tile judgment, which may be reviewed upon appeal from the final judgment, under section 956.

Id. — Construction of Code —Meaning of “ Decision ” — Written Findings—Intermediate Decision—Exceptions. — The word “decision,” as used in sections 648 and 939 and in the first part of section 956 of the Code of Civil Procedure, where it is used as an alternative to the word “verdict,” refers to the written findings of fact and law mentioned in section 633 of the same code; but as used in the phrase “ any intermediate order or decision, ” employed in the latter part of section 956, the Word “decision ” does not refer to written findings, which are not required upon such orders; and an exception to an “intermediate order or decision ” is not an “ exception to the verdict or decision,” in the sense of section 939.

Disobedience to Notary’s Subpiena—Striking out Pleading — Contempt. — To justify striking out the complaint or answer of a party for 'disobedience to a notary’s subpoena, under section 1991 of the Code of Civil Procedure, the disobedience must be proved to have been willful or intentional, so as to constitute a contempt of the authority of the notary, and must be proved by the same degree of evidence as would be required to prove the party guilty of such contempt.

Id. — Postponement of Deposition — Failure to Notify Witness. — There is no sufficient evidence tending to prove willful disobedience to a notary’s subpoena by a party summoned as a witness, if it appears that the taking of the deposition was postponed several times by consent of counsel, and that the witness was not notified to attend on the day finally appointed, and it does not appear that the witness had personal notice of the appointments made by agreement of counsel.