Whitby v. Rowell

California Supreme Court

Whitby v. Rowell

23 P. 40, 82 Cal. 635, 1890 Cal. LEXIS 618

CourtCalifornia Supreme Court

DecidedJanuary 29, 1890

DocketNo. 13398

StatusPublished

Cited by9 cases

This text of 23 P. 40 (Whitby v. Rowell) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whitby v. Rowell, 23 P. 40, 82 Cal. 635, 1890 Cal. LEXIS 618 (Cal. 1890).

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Opinion

McFarland, J.

Action to foreclose a mortgage. Defendant, Rowell, demurred to the complaint. The demurrer was overruled, and said defendant refusing to answer, judgment went for plaintiff. From the judgment, Rowell appeals.

The demurrer was on the general ground of a failure to state sufficient facts, and also on the ground of want of jurisdiction. It resolves itself into the point that the complaint contains no description of the land mortgaged, and does not show that it ivas situated in the county of San Bernardino. The complaint contains a copy of the mortgage, which has a full description of the mortgaged premises. Appellant’s point is, that the complaint is defective in this regard, because the copy of the mortgage is in an exhibit which is attached to and made part of the complaint. This has been held to be sufficient in a number of cases, and pointedly in Emeric v. Tams, 6 Cal. 156,—a case precisely similar to the case at bar. The appeal was evidently for delay.

Judgment affirmed, with two hundred dollars damages, and costs.

[636]*636Sharpstein, J., and Thornton, J., concurred.

A petition for a hearing in Bank having been filed, the following opinion was rendered thereon on the 28th of February, 1890:—

The Court.

— In their petition for a rehearing of this cause, counsel for appellant complain that the Department, in its decision, has failed to notice several points arising upon the record. This may be so, but it is certainly true that the Department noticed and decided— correctly, as we think—the only point which was mentioned in the appellant’s brief. If parties appealing to this court do not take the trouble to call attention to the points upon which they rely, they cannot reasonably expect us to search the record in order to find them, or to order rehearings for the purpose of considering them by piecemeal.

The case of City of Los Angeles v. Sigornet, 50 Cal. 298, was not referred to in the opinion, but there is a clear distinction, we think, between that case and this case, and between that case and Emeric v. Tams, referred to in the opinion.

Rehearing denied.

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McFarland, J.

Action to foreclose a mortgage. Defendant, Rowell, demurred to the complaint. The demurrer was overruled, and said defendant refusing to answer, judgment went for plaintiff. From the judgment, Rowell appeals.

The demurrer was on the general ground of a failure to state sufficient facts, and also on the ground of want of jurisdiction. It resolves itself into the point that the complaint contains no description of the land mortgaged, and does not show that it ivas situated in the county of San Bernardino. The complaint contains a copy of the mortgage, which has a full description of the mortgaged premises. Appellant’s point is, that the complaint is defective in this regard, because the copy of the mortgage is in an exhibit which is attached to and made part of the complaint. This has been held to be sufficient in a number of cases, and pointedly in Emeric v. Tams, 6 Cal. 156,—a case precisely similar to the case at bar. The appeal was evidently for delay.

Judgment affirmed, with two hundred dollars damages, and costs.

[636]*636Sharpstein, J., and Thornton, J., concurred.

A petition for a hearing in Bank having been filed, the following opinion was rendered thereon on the 28th of February, 1890:—

The Court.

— In their petition for a rehearing of this cause, counsel for appellant complain that the Department, in its decision, has failed to notice several points arising upon the record. This may be so, but it is certainly true that the Department noticed and decided— correctly, as we think—the only point which was mentioned in the appellant’s brief. If parties appealing to this court do not take the trouble to call attention to the points upon which they rely, they cannot reasonably expect us to search the record in order to find them, or to order rehearings for the purpose of considering them by piecemeal.

The case of City of Los Angeles v. Sigornet, 50 Cal. 298, was not referred to in the opinion, but there is a clear distinction, we think, between that case and this case, and between that case and Emeric v. Tams, referred to in the opinion.

Rehearing denied.

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Bluebook (online)

23 P. 40, 82 Cal. 635, 1890 Cal. LEXIS 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitby-v-rowell-cal-1890.

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