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Himmelmann v. Spanagel

Supreme Court of California
Apr 1, 1870
39 Cal. 401 (Cal. 1870)


         Appeal from the District Court of the Fourth District, City and County of San Francisco.

         The appellants were sued jointly with other persons.


         First --The judgment is unauthorized, because the complaint does not state sufficient facts.

         Second --The judgment is entered upon a finding. It was not necessary that findings should be filed; but having been filed, the judgment corresponds therewith. (Lyons v. Lyons, 18 Cal. 447.)

         E. A. Lawrence, for Appellants.

          R. P. & Jabish Clement, for Respondent.

         First --The objections made to the complaint were not raised by appellants in the Court below. They do not go to the sufficiency of facts, but to the sufficiency of the statement of the facts. Therefore, if they had been well founded, they would have been obviated by the verdict. (Jones v. Block, 30 Cal. 228.)

         Second --No findings were called for at the trial by any one--certainly not by appellants, who suffered default. Therefore the judgment will not be reversed for want of a finding upon any point. And no exception was taken to the findings; therefore thejudgment will not be reversed for any defects in them.

         JUDGES: Rhodes, C. J., delivered the opinion of the Court.


          RHODES, Judge

         The appellants, Roper and Reay, entered their appearance in the action, and not having demurred or answered, their default was entered. Their objections to the complaint go to the sufficiency of the statement of the facts, but not to the sufficiency of the facts themselves, and cannot be entertained unless presented by special demurrer. Their default amounting to an admission of the facts stated in the complaint, there was no issue as between them and the plaintiff. They are, therefore, unaffected by the findings, and have no cause to complain that the judgment is not sustained by, or is repugnant to, the findings.

         Judgment affirmed.

Summaries of

Himmelmann v. Spanagel

Supreme Court of California
Apr 1, 1870
39 Cal. 401 (Cal. 1870)
Case details for

Himmelmann v. Spanagel

Case Details

Full title:A. HIMMELMANN, Respondent, v. GEO. SPANAGEL et als., Appellants

Court:Supreme Court of California

Date published: Apr 1, 1870


39 Cal. 401 (Cal. 1870)

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