Abadie v. Carrillo

32 Cal. 172

• Court: California Supreme Court
• Decided: July 1, 1867
• Status: Published

Opinions

By the Court, Sawyer, J.:

The appeal rests on the judgment roll alone. The judgment roll does not disclose what the action upon the demurrer was. Nor is it to be expected that it would, for, before the recent amendment, section two hundred and three did not require it to contain the order sustaining or overruling the demurrer. It, therefore, does not appear whether time to answer was given or not. The defendant appeared by demurring, .and the subsequent /proceedings were necessarily had under the direction of the Court. Final judgment was entered in open Court, by order of the Court, and all intendments are in favor of its correct action. Nothing to the contrary appearing, it must be presumed that" the demurrer was disposed of, and that the necessary preliminary steps which are not required to "appear ii7the judgment roll were taken.

The point of the demurrer is, that the complaint does not state the value of the goods, or a promise to pay the sum claimed. The complaint is in the precise form of the complaint which was held to be sufficient by the Court of Appeals of New York in Allen v. Patterson, 3 Seld. 476. The Court say (479): “It contains every statement of fact necessary to constitute a good indebitatus count in debt, according to the mode of pleading before the code.” (2 Ch. Pl., Ed. 1812, p. 142; Emery v. Fell, 2 Term. R. 28; 1 Ch. Pl. 345.) Our predecessors frequently held that the ordinary forms of counts is indebitatus assumpsit, for goods sold and delivered, etc., were sufficient. (Freeborn v. Glazier, 10 Cal. 338; DeWitt v. Potter, 13 Cal. 171; Higgins v. Horrell, 18 Cal. 333.) But in Wilkins v. Stidger, 22 Cal. 235, the precise question now presented was raised, and the complaint held to be good. Mr. Justice Crocker says: “The first error assigned, is, that the complaint does not state facts sufficient to constitute a cause of action, because that portion of the complaint which sets forth the claim for professional services does not aver a promise to pay, or that the services were of any value. We think the complaint is in this respect sufficient. It follows substantially the form of a count in debt, under the old system of pleadings.” As in the case of Allen v. Patterson, before cited, it was put upon the ground, that it would be a good count in debt at common law. Upon the authority of these cases we hold the complaint sufficient.

Judgment affirmed.