46 Cal. 651 | Cal. | 1873
The Court erred in sustaining the defendant’s motion to dismiss the complaint, upon the ground that the Act of April 1st, 1870 (Stats. 1869-70, p. 569), provides a remedy which the plaintiff was bound to pursue. Without entering into an unnecessary discussion of the constitutionality of this Act, it is sufficient to say that the remedy it purports to provide is merely cumulative. It is undertaken by this Act to provide means by which a party may procure a right which he would not otherwise have, but it cannot be construed to have the effect of excluding a party from the enforcement of a right which he claims to have independent of the statute.
The suit appears to have been dissmissed solely for the reason that the plaintiff had an adequate remedy under the statute referred to. We do not think we are called upon to decide whether the complaint is defective in other respects or not, especially as we have not been favored with any brief or points and authorities upon the part of respondent.
