McDougal v. Downey

45 Cal. 165 | Cal. | 1872

By the Court:

The Court below sustained a demurrer to the complaint “ for the reason that it appears by the complaint that a former recovery and judgment have been had on the same mortgage herein sued on, and it appearing that plaintiff has an adequate remedy for the alleged demand otherwise than by this suit.” While it is true that a decree had been entered upon this mortgage in a former action, it did not embrace the demand upon which the present action is founded. This latter demand has arisen only since the entry of the decree in the former action, and its amount has never been judicially ascertained, and no relief could be had under (lie provisions of section two hundred and forty-eight of the Practice Act. The judgment must, therefore, he reversed; but as the appellant has caused a “statement on appeal” to be printed and sent up in the transcript, which “ statement ” was wholly unnecessary and inadmissible upon an appeal of this character, they are not to be piermitted to tax against the defendant more than one half of the cost of printing the transcript.

Judgment reversed and cause remanded, with directions to overrule the demurrer.