Doyle v. Franklin

By the Court, Wallace, C. J.:

When this cause was here upon a former occasion (40 Cal. R. 106) it was held that the complaint was in ejectment, though containing much immaterial matter which would have been stricken out upon objection, and that' the answer averring that the plaintiffs here were parties to the former action of Franklin v. Doyle, and were concluded by the judgment in that action, left a plain issue of fact to be tried. The judgment was then reversed and the cause remanded, and, a new trial having been had in the Court below, judgment was rendered for the defendants. The present appeal was taken from an order denying the plaintiffs a new trial. It is plain, that treating the complaint as an action of ejectment, the answer of the defendants need only defend the material allegations of the complaint—that is, the allegations material to constitute a sufficient complaint in ejectment—and that the other and immaterial allegations, inserted therein, whether controverted by the answer or not, go for nothing.

The important question at the second trial seems to have been whether or not the present plaintiffs were, in point of fact, defendants in the action of Franklin v. Doyle, in which Franklin, defendant here, recovered the premises in controversy. At the close of the plaintiffs’ case, the defendants moved the Court below for a nonsuit, which motion was denied. The defendants then offered in evidence the judgment roll in the case of Franklin v. Doyle, relied upon by them to defeat a recovery by the plaintiffs in this action,, The roll was admitted by the Court below, and the plaintiffs excepted to the ruling of the Court, and this, as we understand from the counsel for the plaintiffs at the argument, constitutes the only point relied upon to reverse the , order denying the motion for a new trial. It is clear, however, that the supposed error of the Court below, in admitting the roll in evidence, cannot he reviewed on this appeal, because the record before us does not set forth the roll or state its contents. It seems to have been inserted in the transcript in the first instance, but was subsequently, as we are informed by a memorandum annexed to the transcript, stricken out by the appellant at the request of the respondent. Of course, it is impossible for us to determine the admissibility of a record or other paper admitted in evidence at the trial, unless the record or paper so admitted, or a settled abstract of its material contents, is set forth in the record. It is true,.that we see in the transcript. here a statement of the objections made by counsel against its admissibility, but we cannot, in the present condition of the record, determine whether or not the roll offered was, in point of fact, open to the objections thus taken. Thus: “Mr.-, for plaintiffs, objects to the introduction of the papers, on the ground that neither of * the plaintiffs in this suit were defendants in that suit,” etc. Novr, the roll thus objected to, for aught we can know, may, upon inspection by thp Court below, have shown that, in point of fact, the plaintiffs in this suit were defendants in that suit, and the objection of the plaintiffs’ counsel may have been overruled on that ground.

It is hardly necessary to refer in this connection to the settled rule that all intendments here, consistent with the record as presented, must be taken in support of the proceedings of the Court below, and that the burden is upon the appellant to make the alleged error manifest.

Order affirmed. Bemittitur forthwith.

Mr. Justice McKinstry did not express an opinion.