Hawley v. Kocher
Before: McFarland
Synopsis
Pleading—Obdbb Striking Out—Bill of Exceptions—Appeal.—An. ■ order striking o-ut parts of a pleading is not part of the judgment-roll, and can be reviewed upon appeal only upon a bill of exceptions. The fact that such order is deemed in law to-be excepted to, under section 647 of the Code of Civil Procedure, cannot dispense with the necessity of incorporating the order-in a bill of exceptions.
Id.—Insufficient Recital in Judgment—Presumption.—A recital in the judgment that an order was duly given and made granting defendant’s motion to strike out certain portions of the amended complaint of the plaintiff, without stating any grounds of the motion, or what parts were stricken out, is insufficient to show an erroneous ruling; and, in the absence of such showing, the ruling must be presumed to have been correct.
Claim and Delivery—Description oe Property—Certainty.—In an action of claim and delivery, to recover personal property, the complaint must describe the property with a reasonable degree of certainty to enable the defendant to make return thereof.
Id.—Action by Assignee op Insolvent Debtor—Uncertain Description.—In an action by an assignee of an insolvent debtor to recover personal property transferred by the insolvent long before suit brought, a general description of the property as being “the greater part or portion” of a stock of merchandise in the store of such insolvent, followed by statements in gross of the value of numerous articles sold by him, without stating the quality, quantity, value, or price given to any particular kind of property named, and without averring where the property was at the time of the commencement of the suit, is bad for uncertainty, and is not sufficient to support the complaint as against a demurrer on that ground.
McFARLAND, J. This action is brought by the plaintiff, as assignee in insolvency of Jacob Kocher, against the defendant, to recover personal property, or “three thousand five hundred and ninety-seven dollars and nineteen cents,” the value thereof, in case delivery cannot be had, together with five hundred dollars, damages for the detention thereof, and for costs of suit. The action is what is usually called, under our system, “claim and delivery of personal property.” Judgment was rendered for the defendant, and the plaintiff appeals upon the judgment-roll alone, without any bill of exceptions. The. transcript commences with an “amended complaint.”
The respondent filed a demurrer to the amended complaint. The demurrer was general and also special. The special grounds were that the complaint was uncertain, also that it was ambiguous, and also that it was unintelligible. The real ground of the demurrer was that the complaint did not contain any sufficient [79]description of the property sought to be recovered. The court sustained the demurrer; and the appellant not having filed another amended complaint within the time allowed, judgment was rendered against him, and from this judgment he appeals.
Appellant contends that the court below erred in striking out a portion of the amended complaint, but that contention cannot be considered on this appeal; it could be reviewed only upon a bill of exceptions. An order striking out part of the pleadings is not part of the judgment-roll. (Code Civ. Proc., sec. 670.) This has frequently been determined by this court. In Fecly v. Shirley, 43 Cal. 369, the court said: “The ruling of the court in striking out a portion of the answer cannot be reviewed upon this appeal, since it forms no part of the judgment-roll.” (Citing cases.) In Morris v. Angle, 42 Cal. 240, the court says: “The notices of motions to strike out and to dismiss, and the order of the courts upon such motions, .... do not legitimately constitute a portion of the record in this case on appeal. They are not embodied in any statements or bill of exceptions, and constitute no part of the judgment-roll in this case, hence cannot be regarded on this appeal.” In Ganceart v. Henry, 98 Cal. 281, the appellant sought to have reviewed an order of the court below refusing to strike out an amended answer, and the court said: “Ho bill of exceptions was prepared embodying the action of the court in the premises, without which the notice, motion to strike out, and order of the court refusing such motion, did npt become a part of the judgment-roll under section 670 of the Code of Civil Procedure.” It is true that there was the further objection in that case that there was no exception to the refusal of the court to strike out, and an order refusing to strike out is not one of the orders which are deemed to have been excepted to by section 647 of the Code of Civil Procedure, but it was held, that, in any event, the point could be raised only upon a bill of exceptions. In Barber v. Mulford, 117 Cal. 356, the court says: “There is printed in the transcript a notice of motion to strike out part of the complaint, also an order of the court refusing the same, and error is assigned thereon. These proceedings are not part of the judgment-roll, and are not embodied in any bill of exceptions; this court cannot, therefore, take any notice of them.” In Nevada etc. Canal Co. v. Kidd, 43 Cal. 180,
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