Watson v. San Francisco & Humboldt Bay Railroad

50 Cal. 523

Opinion

By the Court :

At the argument, the complaint was assailed on the ground, first, that the several causes of action are not separately stated; second, that one of them is contra bonos mores, or against public policy. The only methods to which the defendant resorted in the court below to test the sufficiency of the complaint in these particulars, were, first, a motion to dismiss the action; second, a motion for judgment on the pleadings; both of which were properly denied, neither being an appropriate method of reaching the objection.

We cannot review the evidence, there being no specification of the particulars wherein it was insufficient to justify the verdict. But the verdict and judgment are for gold coin, and there is no allegation in the complaint warranting a recovery in gold coin. This point was relied upon on the motion for a new trial, and the court should have modified the judgment in this particular. It is true, section 664 of the Code of Civil Procedure requires the judgment to conform to the verdict; but if the verdict goes beyond the issues raised by the pleadings, and passes upon an extraneous fact not embraced therein, it is void pro tanto,, and the surplus matter may be disregarded in entering the judgment. In this case there was no issue as to whether the plaintiff’s demand was payable in gold coin, and the complaint contains no averment on that point. The words “gold coin” in the verdict are, therefore, mere surplusage, and should have been disregarded in entering the judgment.

The judgment and order are affirmed, except in so far as the judgment requires payment in gold coin, and the cause is remanded with an order to the court below to modify the judgment in accordance with this opinion.