Nevada County & Sacramento Canal Co. v. Kidd

43 Cal. 180

Opinion

By the Court,

Wallace, C. J.:

First—Upon motion of the defendants, an order was entered striking out a portion of the complaint. The appeal is taken from the judgment and from an order sustaining a demurrer to the complaint. That an order striking out a portion of a pleading may be reviewed here upon appeal from the judgment is true; but it is no less true that such an order, being in itself no part of the judgment roll (section two hundred and three), cannot be so reviewed except it be supported by a statement on appeal; and here there is none.

Second—The Court sustained a demurrer to the complaint, with leave to the plaintiff to amend, and no amendment having been made, rendered judgment dismissing the action.

It is clear that several causes of action have been improperly united—mingled together—in the complaint. The entry upon the “site for a dam”—the “dam constructed”—the “ land on which the same is built,” etc., (as was said here in N. C. and S. C. Co. v. Kidd, 37 Cal. 282), “may perhaps be regarded as a single cause of action;” but, as was then said also, “ the water right * * * is a different thing.” The complaint, containing as it does but a single 'cause of action, and counting upon an invasion of all these in that count, is clearly obnoxious to the demurrer interposed under subdivision five, section forty, of the Practice Act.

Judgment affirmed.

Mr. Justice Kiles, having been of counsel in the Court below, did not sit in this case.