Kirsch v. Derby

31 P. 567, 96 Cal. 602, 1892 Cal. LEXIS 993

Opinion

McFabland, J.—

Defendant made default in the court below, and judgment was rendered for plaintiff. Defendant appeals upon the judgment roll; and the point insisted on for a reversal is, that the complaint is defective, because plaintiff, by said complaint, has not properly pleaded either the probate of the will of Julia Kirsch, deceased, or the appointment of defendant as executor.

We are satisfied that the probate of the will and the executorship of appellant are sufficiently pleaded. (Weller v. Dickinson, 93 Cal. 108; Wise v. Williams, 72 Cal. ; Munro v. Dredging Co., 84 Cal. 515; 18 Am. St. Rep. 248.) But the complaint states sufficient facts for a personal judgment against appellant. If there were any valid objections to the complaint on the ground of ambiguity or uncertainty, such objections could have been taken only by special demurrer. (Demartin v. Albert, 68 Cal. 277; Blanc v. Klumpke, 29 Cal. 156; Blasingame v. Home Ins. Co., 75 Cal. 633; Heeser v. Miller, 77 Cal. 192.)

The judgment is affirmed.

De Haven, J., and Sharpstein, J., concurred.