Jones v. Frost, 28 Cal. 245

Jones v. Frost

28 Cal. 245 | Cal. | 1865

By the Court,

Shafter, J.

This is an action on a promissory note.

First—The first error assigned is that the demurrer to the complaint was improperly overruled—the assignment of the breach being, as is contended, substantially defective. The breach assigned is : “ That no part of said note, principal or interest, has been paid.” We consider that there is no defect in this averment, either substantial or formal.

Second—It is further insisted that the Court erred in refusing to transfer the case for trial to the county of defendant’s residence.

It appears from the record that the defendant demurred to the original complaint; that the demurrer was argued, submitted and sustained; that the plaintiff, by leave given, filed an amended complaint, to which the defendant, on the 6th of May, 1864, also demurred; and that on the eighteenth of that month he gave notice of his intention to move for a change of venue. The proceedings prior to the notice amounted to a waiver, on the part of the defendant, of his right to have the action tried in the county where he resided. (Peakes v. Freer, 9 Cal. 649.) The appellant is mistaken in supposing that the filing of the amended complaint was the commencement of a new action. The new complaint doubtless superseded the original and destroyed its effect as a pleading, as was held in Gilman & Co. v. Cosgrave, 22 Cal. 356, but it did not go to the identity of the action.

Third—The third specification of error is : “ That the Court had no power to add to the amount of the judgment a sum for costs, after time for filing a memorandum had expired, and after appeal perfected.” The judgment was entered August *2476th, 1864, and the appeal therefrom was perfected on the tenth of that month, and on the twentieth the order for costs was applied for and granted. The order complained of was made ten days after the Court had lost jurisdiction of the case by the perfecting of the appeal, and the proper and only remedy for the defendants was by appeal from the order.

The judgment is affirmed.