Guthrie v. Phelan

• Decision Date: 17 February 1885
• Citation: 2 Idaho 95,6 P. 107
• Parties: GUTHRIE v. PHELAN
• Court: Idaho Supreme Court

6 P. 107

2 Idaho 95

GUTHRIE v. PHELAN

Supreme Court of Idaho

February 17, 1885

RECORD ON APPEAL FROM JUDGMENT.-On appeal from a judgment, without a statement, nothing belongs to the record, except the judgment-roll, and no question arising outside the roll can be considered.

EXCEPTIONS TAKEN AT THE TRIAL.-Exceptions taken at the trial and settled as provided in sections 405 and 406 of the Civil Practice Act form part of the judgment-roll, and constitute part of the record on appeal from the judgment.

ISSUES OF LAW AND FACT.-When there is both a demurrer and answer to the same complaint, raising both an issue of law and fact the issues of law should be first determined.

SAME.-When there are both issues of law and fact and the cause is brought on for trial and a judgment rendered, the presumption will be indulged on appeal that the issue of law was previously disposed of by an order overruling the demurrer.

EXCEPTIONS DEEMED TO HAVE BEEN TAKEN.-The exceptions which, by section 403 of the Practice Act, the adverse party is deemed to have taken, have the same force and effect in the conduct of the action as other exceptions, and cannot be considered, on appeal, without being incorporated into a bill of exceptions and made a part of the judgment-roll.

(Above syllabus by the court.)

DEMURRER-WAIVER-PRACTICE ON APPEAL.-Where defendant demurred to the complaint in the trial court, but afterward waived such demurrer, he cannot have the same considered upon appeal.

APPEAL from District Court, Oneida County. Affirmed.

Affirmed.

Prickett & Lamb, for Appellants.

On the twenty-seventh day of December, 1882, the defendants, by their attorneys, appeared and demurred to the complaint (see Transcript, p. 43), which demurrer was overruled by the court. On the fourth day of January, 1883, the plaintiffs without leave of court, filed a paper designated a supplemental complaint, in which it is alleged that the note set out and described in the original complaint "is now past due and is unpaid," and "that one hundred dollars is a reasonable and just fee for the collection of said note." (See Transcript, pp. 12-14.) On the seventeenth day of March, 1883, one of the plaintiffs' attorneys filed with the clerk of the court an affidavit showing that the "amended" complaint was served on defendants' attorneys "through the United States mail" on the twenty-first day of January, 1883, and that no answer or demurrer thereto had been served "on this affiant as attorney of plaintiff," and thereupon the clerk entered the default of the defendants on the seventeenth day of March, 1883. (See Transcript, pp. 36-38.) On the twenty-sixth day of March, 1883, the defendants filed an "amended" demurrer to the plaintiffs' complaint. (See Transcript, p. 43.) May 21st an answer was filed. May 21, 1883, the defendants moved the court to set aside the default entered by the clerk, which motion was, on the next day, overruled by the court; and on the twenty-fifth day of May, 1883, a judgment was rendered against the defendants upon the note only (the account having in the meantime been paid), for $ 1,139.50 and costs. (Record, p 50.) From the judgment so rendered the defendants appealed to this court. (Record, p. 66.) The appellants submit that the complaint does not state facts sufficient to constitute a cause of action, or to support a judgment. Where the complaint shows no cause of action, a judgment by default can no more be taken than it can be over a general demurrer. (Abbee v. Marr, 14 Cal. 210.) The so-called supplemental complaint was filed without leave of the court, in violation of the provisions of the Code of Civil Procedure, section 261. The default of the defendants was entered improperly and irregularly, without any authority in the clerk to enter the same. The demurrer to the original complaint was pending. The defendants were not required to answer or demur to the supplemental complaint, because it was filed without leave of court, and because neither the original nor supplemental complaint, nor both combined, contained facts constituting a cause of action. The action of the clerk in entering the default being void, the judgment entered upon such default is also void. The court below erred in refusing to set aside the default. For these errors, apparent upon the face of the record, we submit that the judgment of the district court should be reversed, with directions to dismiss the action.

Smith & McCollum, for Respondents.

There is but one question to be considered on this appeal; that is, Do the pleadings of plaintiffs show a cause of action? Defendants having fully appeared to the original and supplemental complaint, no question of service or of jurisdiction can be considered here. That defendants did so appear, see notice in Transcript, page 41. This is not an ordinary judgment rendered by the court in term after answer filed and upon the pleadings. This fully appears from the transcript (see Transcript, pp. 45, 50), and the recitation of the premises in the judgment, stating that it is purely by default, does not change this. The objection that the supplemental complaint was not filed in strict accordance with the code, section 262, or that it is not in aid of the original complaint, cannot be raised on appeal on the judgment-roll, and if the defendants appeared to the supplemental complaint, they waived all objections. (Witmore v. Truslow, 51 N.Y. 338.) It is perfectly proper to set up rights accruing or acquired after the beginning of the action in an amended or supplemental complaint. (Smith v. Billet, 15 Cal. 23; Tustin v. Faught, 23 Cal. 242.)

Morgan C. J., and Broderick and Buck, JJ., concurring.

OPINION

PER CURIAM.

--This action was commenced in the court below-on the eighteenth day of December, 1882, upon an open account for goods, wares, and merchandise, and also upon a promissory note. At the time of the commencement of the action the promissory note was not due, and did not become due until the first day of January, 1883. When the action was commenced, the plaintiff caused an attachment to be issued, and certain goods of the defendants were levied upon. On the twenty-seventh day of December, 1882, the defendants, by their attorneys, appeared and demurred to the complaint. The record brought here does not notice any rulings or order upon the demurrer. On the fourth day of January, 1883, the plaintiff filed a supplemental complaint, which omitted the first count in the original complaint, and counted alone upon the promissory note. On the twenty-sixth day of March, 1883, the defendants filed a general demurrer to the complaint, which was denominated "Amended Demurrer." The record before us is silent as to the disposition of this demurrer. On the twenty-first day of May, 1883, the defendants filed their answer to the complaint, and on the twenty-fifth day of the same month a judgment was entered against the defendants upon the promissory note. No bill of exceptions was taken, and the cause is here upon the judgment-roll, which is imperfect in almost every part; evidently, it is not a complete transcript of all the proceedings had in the case, and the clerk does not so certify. From an inspection of the record it is impossible to know what proceedings were had in the court below. But the parties, by their counsel, have appeared and argued and submitted certain questions for our determination.

The appellants interpose a demurrer in this court, and thereby question the sufficiency of the complaint to sustain the judgment, and contend for the correctness of their practice. While it is true that in some cases an objection to the sufficiency of the complaint can be raised for the first time in this court, yet it is not a practice that can be commended in causes where all parties appeared and had their day in the trial court. The public has an interest in all litigation, and when the defendant is in court, the time of the court should not be consumed in the trial of a cause where an objection by the defendant would terminate all proceedings, and save to parties and to the public the time and expense of litigation.

The question, however, in this case is not whether the appellants can object to the sufficiency of the complaint for the first time in this court, but whether they could raise their objection...