75 Cal. 265 | Cal. | 1888
Lead Opinion
—Action for services rendered by a son to his father. Judgment was rendered in favor of plaintiff for $605, and the defendant appeals.
1. It is contended that the complaint does not state a cause of action. But we think that matter was 'Concluded by the decision on the former appeal. Upon the first trial, judgment was rendered for plaintiff for $2,328.87, and the defendant appealed. The judgment was reversed because a great part of the demand was considered to be barred by the statute of limitations. This of course did not involve the sufficiency of the complaint. But the question of the sufficiency of the complaint was the main point discussed; and, as we understand the opinion, the court decided against the defendant, and held that the complaint stated a cause of action. We readily concede that the rule as to the law of the case does not protect mere dicta. But a decision upon a point which arose in the case, and was decided, is not a dictum, although it was not necessary to the disposition of the appeal. (Table Mountain v. Stranahan, 21 Cal. 551; and compare Olney v. Sawyer, 54 Cal. 384, 385; Camron v. Kenfield, 57 Cal. 553, 554; San Francisco v. S. V. W. W., 53 Cal. 610.) Doubtless the counsel for the plaintiff relied upon the decision, and it would be unjust to suffer the sufficiency of the complaint to be again called in question.
If the complaint is held to be sufficient, the finding by reference to it is sufficient. (McEwen v. Johnson, 7 Cal. 260; Pralus v. Pacific G. & S. M. Co., 35 Cal. 34, 35; Carey v. Brown, 58 Cal. 184; Moore v. Clear Lake Co., 68 Cal. 146; Johnson v. Klein, 70 Cal. 186.) Possibly the reference in question would not cover the plea of the statute of limitations. But that point is not raised by counsel, and we do not think that the circumstances are such as to require us to notice it.
2. It is urged that the defendant should have been allowed a credit of $566.48, which was the price of a crop
The other matters do not seem to require special notice.
We therefore advise that the judgment and order appealed from be affirmed.
Foote, 0., and Belcher, 0. 0., concurred.
Concurrence Opinion
—For the reasons given in the foregoing
opinion, the judgment and order are affirmed.