Tax
THE PEOPLE, Appellant, v. WILLIAM H. OTTO et al., Respondents
77 Cal. 50·Supreme Court of California·1888·CA
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Opinion
[No. 11269.
Department One.
June 27, 1888.]
THE PEOPLE, Appellant, v. WILLIAM H. OTTO et al., Respondents.
Appeal — Presumption against Error — Motion to Strike out Answer —Judgment on Pleadings. —When a motion to strike out an answer' as sham and irrelevant, and for judgment as by default on the pleadings, ■ is based on all the papers on file in the case, and the record on appeal contains only the judgment roll, without a statement or- bill of exceptions, it will be presumed that there was something in the papers on file, not a part of the judgment roll, which warranted the action of the court in awarding judgment upon the motion for an amount less than that claimed in the complaint,
Appeal from a judgment of the Superior Court of Del Norte County.
The action was brought upon the official bond of Wil- • liam H. Otto, as tax collector of the county of Del Norte. The defendant Otto made default. The sureties filed a' verified answer, which the district attorney moved to strike out as sham and irrelevant, and interposed only for purposes of delay. In the notice of the motion the ‘ district attorney notified the sureties that “on the hearing of said motion the plaintiff will use all the papers on file ' in this action, and at the same time and place the plaintiff will move the court for judgment as by default on the pleadings in said action.” The other facts are stated in the opinion of the court.
Attorney-General Johnson, L. F. Coburn, and L. F. Cooper, for Appellants.
William H. H. Hart, and Aylett B. Cotton, for Respondents.
[MAJORITY — Searls, C. J.]
Searls, C. J.
This is an appeal by the people from a judgment in their favor for $1,769.31, and interest and costs.'
In the complaint plaintiffs demand judgment for a further sum of $632.62, making an aggregate of $2,281.83.
After the answer of defendants was filed, plaintiffs moved, “upon all the papers on file in this action,” to strike out as sham and irrelevant the answer of defendants, and for judgment as by default on the pleadings in said action.
No order seems to have been made striking out the answer, but judgment was rendered in favor of the people and against defendants as above stated.
The case comes before us on an appeal from the judgment. There is no statement or bill of exceptions.
As the motion was based on all the papers on file in the case, and as the record contains only the judgment roll, non constat but there was something in the papers on file, and which are not a part of the judgment roll, which warranted the court in awarding judgment for the amount specified in such judgment.
The judgment is affirmed.
McKinstry, J., Paterson, J., and Temple, J., concurred.