Klauber v. San Diego Street-Car Co.

PER CURIAM. In this case judgment was originally entered in the court below for defendant. An appeal was taken by the plaintiffs to this court from the judgment upon the judgment-roll, and this dourt reversed the judgment and directed the superior court “to enter a judgment upon the findings in favor of plaintiffs, in accordance with the prayer of the complaint.” When the case went back to the superior court judgment was there .entered for plaintiffs in strict pursuance of the said direction of this court. The defendant then procured the court below to settle a bill of exceptions, and upon the judgment-roll, including said bill of exceptions, he now appeals to this court. Respondents moved to dismiss the appeal upon the ground that the judgment of the court below, entered in accordance with the directions of this court as aforesaid, was final, but the motion to dismiss the appeal was denied in department, upon the ground that the bill of exceptions presented some questions that had not been passed upon at the former appeal: 98 Cal. 105, 32 Pac. 876. The main contention of appellant on this appeal is that the complaint does not state facts sufficient to constitute a cause of action, but that point was clearly and necessarily decided against the appellant’s contention on the former appeal. It appears that the demurrer to the complaint was not included in the judgment-roll as it came to this court upon the former appeal, but the appellant could easily have supplied it by a suggestion of diminution of the record; and the question of the sufficiency of the complaint to constitute a cause of action was before the court, whether the demurrer was in the record or not. The only other points made by appellant are that the findings are not sustained by the evidence, and that certain deeds were improperly [291]admitted in evidence; but neither of those contentions can .be maintained, and we see nothing in them demanding special notice. The judgment appealed from is affirmed.