123 Cal. 77 | Cal. | 1898
This action is brought by the plaintiff, as assignee in insolvency of Jacob Kocher, against the defendant, to recover personal property, or “three thousand five hundred and ninety-seven dollars and nineteen cents,” the value thereof, in case delivery cannot be had, together with five hundred dollars, damages for the detention thereof, and for costs of suit. The action is what is usually called, under our system, “claim and delivery of personal property.” Judgment was rendered for the defendant, and the plaintiff appeals upon the judgment-roll alone, without any bill of exceptions. The. transcript commences with an “amended complaint.”
The respondent filed a demurrer to the amended complaint. The demurrer was general and also special. The special grounds were that the complaint was uncertain, also that it was ambiguous, and also that it was unintelligible. The real ground of the demurrer was that the complaint did not contain any sufficient
Appellant contends that the court below erred in striking out a portion of the amended complaint, but that contention cannot be considered on this appeal; it could be reviewed only upon a bill of exceptions. An order striking out part of the pleadings is not part of the judgment-roll. (Code Civ. Proc., sec. 670.) This has frequently been determined by this court. In Fecly v. Shirley, 43 Cal. 369, the court said: “The ruling of the court in striking out a portion of the answer cannot be reviewed upon this appeal, since it forms no part of the judgment-roll.” (Citing cases.) In Morris v. Angle, 42 Cal. 240, the court says: “The notices of motions to strike out and to dismiss, and the order of the courts upon such motions, .... do not legitimately constitute a portion of the record in this case on appeal. They are not embodied in any statements or bill of exceptions, and constitute no part of the judgment-roll in this case, hence cannot be regarded on this appeal.” In Ganceart v. Henry, 98 Cal. 281, the appellant sought to have reviewed an order of the court below refusing to strike out an amended answer, and the court said: “Ho bill of exceptions was prepared embodying the action of the court in the premises, without which the notice, motion to strike out, and order of the court refusing such motion, did npt become a part of the judgment-roll under section 670 of the Code of Civil Procedure.” It is true that there was the further objection in that case that there was no exception to the refusal of the court to strike out, and an order refusing to strike out is not one of the orders which are deemed to have been excepted to by section 647 of the Code of Civil Procedure, but it was held, that, in any event, the point could be raised only upon a bill of exceptions. In Barber v. Mulford, 117 Cal. 356, the court says: “There is printed in the transcript a notice of motion to strike out part of the complaint, also an order of the court refusing the same, and error is assigned thereon. These proceedings are not part of the judgment-roll, and are not embodied in any bill of exceptions; this court cannot, therefore, take any notice of them.” In Nevada etc. Canal Co. v. Kidd, 43 Cal. 180,
Counsel for appellant seems to attach some importance to the fact that section 647 of the Code of Civil Procedure, provides that an order “striking out a pleading or a portion thereof” is deemed to have been excepted to; but an order which is not made a part of the judgment-roll, no matter how an exception to it may be taken, must be presented by a bill of exceptions. In Nash v. Harris, 57 Cal. 242, the court say: “A party who has excepted to a decision of a court, whether he except in person at the time the decision was made, or is deemed in law to have excepted, must in statutory or reasonable time after his exception avail himself of the right to reduce the same to writing and take the steps required by law to have the bill of exceptions settled and signed by the judge.” In the transcript there is printed what is called an “order sustaining demurrer,” in which it is said as follows: “Motion to strike out the amended complaint lines from 10 to 38 on page 4, and lines from 1 to 8 on page 5, allowed, and said lines are hereby stricken from the amended complaint”; but this matter printed in the transcript is of no consequence, because the ruling of the court upon the motion to strike out is no part of the record unless made so by bill of exceptions.
Appellant contends that a bill of exceptions was not necessary because the judgment contains a recital that a motion to strike out parts of the complaint was made and granted. The recital is merely of the bare facts that at the time of the filing of the demurrer to the amended complaint the defendant “filed and served her motion to strike out certain portions of said amended complaint,” and that, after hearing argument, et cetera, “an order was duly given and made granting said defendant’s motion to strike out certain portions of plaintiff’s complaint.” Ho other
2. The demurrer to the complaint was properly sustained upon the ground that there was not a sufficient description of the property sought to be recovered. In any kind of a suit involving personal property it should be described with a reasonable degree of certainty; and this rule is especially applicable to an action of claim and delivery, because the property is to be specifically returned to the plaintiff on the execution, if return can be made, and the defendant in such action has the right to make such return in the event of a judgment against him. The complaint avers that on or about the twenty-ninth day of August, 1896, the insolvent transferred “a large portion” of his property to the defendant; that he was then the owner and in the possession of the following described personal property, towit: “A stock of merchandise, consisting principally of hardware, situated and be
The judgment appealed from is affirmed.
Henshaw, J., and Temple, J., concurred.