Douglas v. Dakin, No. 3,704

No. 3,704 | Cal. | Jul 1, 1873

By the Court:

This appeal being from the judgment, and there being no bill of exceptions or statement on appeal, we cannot consider the motion of plaintiff to strike out portions of the answer, or the motion for judgment, or the rulings or orders made thereon. The case must be determined upon the judgment roll alone.

The demurrer was properly overruled. Prima facie the W. J. Douglas named in the answer was the W. J. Douglas who is plaintiff in this action. The identity of the parties will be presumed from the identity of names.

Whatever may be the value of the fourth subdivision of the answer as a defense to the action, it is not subject to the charge of ambiguity or uncertainty. The averment that at the date of the commencement of the suit by Elizabeth Douglas against the City and County of San Francisco to quiet her title to the land in controversy, she was in the actual possession of the premises, claiming title in fee thereto as her separate estate, clearly shows her right to institute those proceedings. If she was in no way in privity of possession or title with the plaintiffs in the present action, the proceedings and judgment in her suit against the City and County of San Francisco would perhaps be irrelevant and immaterial, and this portion of the answer subject to be stricken out on motion, or to a demurrer upon the ground that it did not state a defense. But no such demurrer was interposed, and as we have said, the motion to strike out cannot be considered.

We discover no error in the judgment roll.

Judgment affirmed.