Packard v. BirdPackard v. Bird
- Reporters:
- Before:
- Rhodes
dеlivered the opinion of the Court,- Ceoce-ett, J., Sprague, J., and Wallace, J., concurring:
The appeal was taken from the judgment alone. The рlaintiff objects, under rule thirteen, to certain pоrtions of the transcript. The objection must be ovеrruled, as to the order sustaining the demurrer to the cross-complaint, and the bill of exceptions, because they properly constitute a part оf the judgment roll. The motion to strike out portions of thе answer will also be retained, as it is referred to in thе bill of exceptions — one of the points therеin saved, being the order sustaining the *383motion. Tbe statute does not expressly provide that an interlocutоry judgment shall constitute a portion of the judgment roll, but as such judgments often determine the rights of the respective parties, there is a manifest projeriety in inserting them in the judgment roll. We are of the opinion that an interlocutory judgment comes within the spirit and meaning оf the statutory requirement, that the judgment shall constitute а portion of the judgment roll.
There are several of the grounds of demurrer which we cannot considеr, for the reason urged by the plaintiff — that it cannot bе ascertained from the transcript, to what pоrtions of the cross-complaint the several grоunds respeetively apply. Distinct portions are demurred to, and such portions are described by reference to the pages and lines of the рleadings; but there is nothing in the transcript to indicate tо what portions the demurrer applied.
The defendant, Bird, in order to maintain his claim to affirmative relief, is compelled to rely upon the contraсt entered into between Mm and Cottle, in respeсt to the purchase of the interest of Chapman in the premises — at the sale under the execution issued upon the judgment of Cottle against Chapman. It was, among other things, agreed between them that Cottle would not bid at the sale, but that Bird should be allowed to purchase Chapman’s interest in the lands. The direct еffect of that branch of the agreement, was tо prevent bidding at the sale under the execution; and it cannot be doubted’ that such an agreement is сontrary to public policy, and therefore void. This question properly arises on the demurrer, on the ground that the cross-complaint does not statе facts sufficient to constitute a cause of action against the plaintiff; and the demurrer was correctly sustained on that ground. The whole contract being vitiated by this agreement, the- defendant was left without any cause of action against the plaintiff, as the assignee of the Cottle judgment, and the purchaser at the execution sale.
Judgment affirmed.
Temple, J., expressed no opinion.