28 Cal. 295 | Cal. | 1865
Lead Opinion
By the Court,
This is an action for false imprisonment. The defendant in his answer denies the allegations of the complaint seriatim, and states a special defense by way of justification. Both the complaint and the answer aim verified. The defendant was defaulted, and thereupon judgment was rendered against him for three thousand dollars—the full amount claimed in the complaint.
There is a diversity of interlocutory orders and other entries in the transcript, showing in detail the movement of the cause in the Court below, and on which the appellant relies, in the main, to make out that the judgment is erroneous. But inasmuch as these entries are not embodied in a statement, they were, for that reason, improperly inserted in the transcript, and the respondent therefore very properly insists that the question of error is to be treated on the judgment roll alone. (Magee v. The Mokelumne Hill Company, 5 Cal. 258 ; Hutton v. Reed, 25 Cal. 478.)
The judgment is as follows: “In this case witnesses were sworn and examined for plaintiff and defendants. The Court, after due consideration, and being fully advised in the premises, ordered that the answer of C. D. Douglass, one of the defendants herein, be, and the same is hereby, stricken out; and that thereupon the default of said Douglass be entered ; and the plaintiff, H. J. Abbott, have judgment against said defendant C. D. Douglass for the sum of three thousand dollars and his costs of suit as prayed for in the complaint.”
The judgment then was upon default; and it appears by the
The grounds of the order are not disclosed in the judgment roll, nor do they appear anywhere in the miscellaneous matter contained in the transcript. But it appears from the recitals in the judgment: First, that witnesses were sworn and examined in the case for both parties, and that the Court after due consideration ordered the. answer to be struck out. From the fact that witnesses were so sworn and examined, it is to be presumed that the case was being tried upon the merits; for under no possible state of facts would it be proper for a Court to permit witnesses to be sworn and examined in connection with a motion to strike out a pleading. Furthermore, the intendment that the question was raised on the trial of the action is fortified by the direct statement in the judgment that “ witnesses were sworn and examined in the case.” Now, upon what ground, if any, could the order have properly been made during the progress of the trial ? If there be any, lying within the scope of legal conjecture, the order must be considered as having been properly made. It could not have been so made on the ground that the answer was not filed within the time limited by law, for if such was the fact, the plaintiff waived the objection by going to trial upon the merits. And, for the same reason, it could not have been properly made on the ground that the answer was not duly verified. And, furthermore, the verification appears to us to be free from objection. Neither can the order be vindicated on the ground that the answer was a “ sham,” or that it was frivolous, irrelevant, redundant or immaterial. The traverse which it contained of all the plaintiff’s allegations is conclusive upon that question, find relieves us from the necessity of looking into the special defense. The grounds upon which an answer may be struck out are mainly defined in section fifty of the Practice Act, and we have already more than exhausted them.
It is suggested for the respondent that the answer may have been stricken out on the ground that the plaintiff neglected to appear and testify in disobedience to a subpoena served upon' him; or, that being called upon, he refused to be sworn ; or, that being sworn, he refused to answer; or on the ground that being required to subscribe an affidavit or deposition, he refused to do so. (Practice Act, Sec. 409.) The answer is obvious. The statement in the judgment that “witnesses were sworn and examined in the case for both parties,” and that “ the Court, after due consideration and being fully advised in the premises, ordered,” etc., excludes the idea that the order striking out the defendant’s answer was made on the score of any personal neglect or any personal contumacy on his part. It appears by the record that the order was upon “ consideration,” and that the consideration was limited to the testimony adduced.
In discussing the question presented, we have referred familiarly to the answer. The answer, notwithstanding the order striking it out, is entitled to its position in the judgment roll. The phrase “ struck out,” as applied to a pleading, is figurative only. An order sustaining a demurrer to a pleading defeats or suspends for the time being its legal effect in the action, and a successful motion to strike out an answer does no more. In either event the pleading, as a document, remains in official custody, and, among others, for the purpose of ulterior proceedings in the Court that made the order, or for the purpose of handy review in the Court of errors. Further, the Practice Act requires peremptorily that whenever an answer has been put in that it shall constitute a part of the judgment roll, no matter how the Court may deal with it on
The conclusion is that the judgment is erroneous; and for the reason that the order striking out the answer of the appellant cannot be right by any known legal possibility.
Judgment reversed and new trial ordered.
Concurrence in Part
Mr. Justice Sawyer delivered the following dissenting opinion, in which Mr. Chief Justice Sanderson concurred.
The appeal is from the judgment. There is no statement on appeal, and none of the grounds relied on by appellant to reverse the judgment are disclosed by the judgment roll. The answer of. defendant, Douglass, having been stricken out by the Court, the judgment roll—in our opinion—consists of the complaint, the summons, proof of service, the entry of default, and a copy of the judgment. The other orders embraced in the transcript form no part of the judgment roll, and cannot be reviewed on this appeal. There is nothing to show upon what any of them were based, or the circumstances under which they were made. They properly constitute no part of the record on appeal. If the appellant desired to have any of these orders reviewed, he should have introduced them into the record on appeal by a statement, together with such other matters constituting a part of the proceedings as would enable this Court to determine whether there was error or not. (Harper v. Minor, 27 Cal. 107.) Had he made a statement, and omitted anything necessary to a full understanding of the grounds upon which the orders were made, the respondent would have had an opportunity to supply the defect by amendment. He has had no such opportunity. The order striking out the answer, and the grounds of the motion to strike out, should have been brought to the attention of the Court in the same maimer. After the answer was stricken out, the document remained on the files as a part of the history of the case, but it was no longer, in legal contemplation, a pleading in till cause. There is nothing in the record
We see no error upon the judgment roll, and if there was any error in the proceedings, the appellant has failed to present it in such a form that we can review it.
There would seem to have been some negligence on the part of appellant. The order in the transcript—though not properly in the record—appears on its face to have been entered at the July term, 1864, and it expressly gave appellant leave to move to restore the answer upon good cause shown, and stayed all proceedings till the next term to enable him to do so. The next term was in November. No motion appears to have been made, no statement on appeal prepared, and no action of any kind taken till January 17th of the next year, when this appeal was taken.
We think the judgment should be affirmed.