112 Cal. 1 | Cal. | 1896
After a demurrer to the original complaint had been sustained by the court the plaintiff filed an amended complaint. Upon the motion of the
1. The amended complaint which was filed after the demurrer to the original complaint had been sustained superseded the original complaint, and the error, if any, committed in sustaining the demurrer was thereby waived. (Gale v. Tuolumne Water Co., 14 Cal. 25; Ganceart v. Henry, 98 Cal. 281.) For the same reason the subsequent filing of another amended complaint, upon which the cause was tried, whereby the cause of action was substantially varied, waived any error committed in striking out portions of the complaint which was thus amended. The grounds upon which these portions were struck out of the complaint was that they were irrelevant and redundant, and the appellant has not pointed any respect in which they are relevant to his
2. The appellant asks a reversal of the judgment upon the ground that the court erred in overruling his demurrer to the special defense alleged in the answer. It does not appear, however, that the judgment in any respect depends upon this defense, or that the defendants offered any evidence at the trial in support thereof. Upon an appeal from a judgment only such errors can be reviewed as have conduced to the judgment. It is incumbent upon the appellant to show that the judgment appealed from has resulted from some error committed by the trial court, and, as every presumption is in favor of the correctness of the judgment, the burden is upon the appellant to make the error apparent. In an action tried by a jury a judgment rendered in accordance with its verdict will be sustained, unless it is made to appear that the verdict was the result of some error at the trial, or that the cause was submitted to the jury for trial- by reason of some error of the court. When an appeal is heard upon the judgment-roll alone, containing a verdict for the defendant, and in which there is no bill of exceptions, we will assume, if necessary to sustain the judgment, that the plaintiff failed to introduce any evidence in support of his cause of action. In the present case all the material allegations of the complaint were denied in the answer, and it is consist
It was suggested at the argument that, unless the action of the court in overruling the demurrer can be reviewed upon an appeal from the judgment, there is no opportunity to review it. If, however, the judgment does not depend upon the defense to which the demurrer interposed, the sufficiency of such defense becomes a mere moot question, which it would not be proper for us to determine; and, if it does depend upon such defense, that fact must be made to appear upon the record.
The judgment is affirmed.
Garoutte, J., and Van Fleet, J., concurred.
Hearing in Bank denied.