Hibberd v. Smith ( 1870 )

Wallace, J.,

delivered the opinion of the Court:

The record here contains a complaint demanding certain premises against several defendants (among whom is Charles Shore); an answer of Holladay, defending the action “in the name of said Shore," as his landlord, and denying the title of the plaintiffs, and averring that Holladay is himself the owner in fee of the premises, and that Shore is his tenant. It does not appear that the issues joined upon the pleadings in these respects have ever been disposed of in any way.

Another portion of the answer, as filed, is a cross bill, in which equitable relief is claimed against the plaintiff below, on the ground that a certain judgment of the District Court of Alameda County, through which the plaintiffs claimed their title to the premises in controversy, was rendered “out of malicious and vindictive feelings, entertained ” by the then Judge of that Court, concluding with a prayer-that the judgment be decreed null and void, and the Sheriff’s deed made thereunder be cancelled.

To that portion of the answer which constitutes the cross bill, the plaintiff demurred; and on April 11, 1868, an order was entered sustaining the demurrer, and on May 13, 1869, it was, pursuant to the order of April 11th, adjudged, that so much of the answer as contained the cross bill be dismissed. This appeal is taken from the proceeding of May 13th.

It is evident that Holladay cannot be considered as an intervenor in this action within the provisions of the statute regulating interventions. He filed no petition or complaint, which was served upon the plaintiffs in the action, to be answered by them as if it were an original complaint.

He has no other status in the case than has his alleged tenant, the defendant Shore, in whose “name” the answer containing the cross bill was filed. The answer was entirely the pleading of defendant Shore, and not of Holladay. From an order sustaining a demurrer to a portion or the whole of an answer, or dismissing it in whole or in part, no appeal can be taken.directly to this Court; the only method of review of such proceedings here is through an appeal from the final judgment thereafter entered in the action itself, if such judgment be unfavorable.

The appeal must be dismissed, and it is so ordered.