Seaver v. Cay & Wife

9 Cal. 564

• Court: California Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring.

The record in this cause shows a somewhat singular state of case.

A demurrer to the complaint was interposed, and was sustained by the Court, and afterwards, during the same term, a judgment was rendered in favor of the plaintiff.

Respondent contends that inasmuch as the proceedings of a Court are deemed regular and legal until the contrary is shown, we must presume that the order sustaining the demurrer was set aside by the Court before judgment was entered.

We do not feel at liberty to indulge this presumption in the face of the clerk's certificate as to the correctness of the transcript, and in view of the fact that the respondent has not thought proper to suggest a diminution of the record, in order that the omission might be supplied.

The record shows that the judgment was improperly rendered, and it is reversed, and the cause remanded for further proceedings.