McAbee v. Randall, 41 Cal. 136

McAbee v. Randall

41 Cal. 136 | Cal. | 1871

By the Court, Wallace, J.:

The appeal here is taken from the final judgment only. There being no statement on appeal, nor bill of exceptions, the record before us for review is limited to such papers as are declared by section two hundred and three to constitute the “judgment roll.” It would seem from the minutes of the trial, which are found in the transcript, and from the argument of counsel, that the real purpose of the appeal from the judgment here taken is to review an order said to have been made by the Court below after the coming on of the cause for trial, by which order a motion of the defendant for judgment in her favor on the pleadings was denied.

If it properly appeared that such an order was really made, it would undoubtedly be examinable here by means of an appeal from the final judgment itself; in fact, it could be reviewed in no other way. The order which we are asked to review is not one disposing of a demurrer, nor relating to a change of parties, and, therefore, cannot be considered here, unless presented by bill of exceptions, or statement on appeal.

So far as the record discloses to us, then, it appears that the parties went to trial in the Court below without objection made upon the part of either to the pleadings of the other, as not permitting that other to be heard on the merits. The defendant’s answer was there styled by himself a “ counter claim,” and not a “cross complaint,” which he now says it is; and the trial proceeded on that idea.

Under repeated rulings in this Court, we will not hear the *138defendant assert here, for the first time, that he made a mistake in this respect—that his answer was, after all,"a “ cross complaint;” that its allegations were not denied by plaintiff, and that, as a consequence, he is now entitled to judgment, over against the plaintiff on the pleadings.

• Judgment affirmed.

Mr. Justice Sprague did not express an opinion.