Bedan v. Turney

Citations

• 99 Cal. 649
• 34 P. 442
• 1893 Cal. LEXIS 734

Syllabus

<p>Appeal—Bill of Exceptions on Motion for New Trial. —Any bill of exceptions settled may be used upon appeal from a final judgment; and an objection to the consideration of alleged errors in instructions to the jury, upon the ground that the appeal is taken from the judgment alone, and that the rulings are only found in a “ bill of exceptions on motion for a new trial,” is without merit.</p> <p>Id. — Appeal from Judgment Boll—Error Appearing not Presumed Cured —Bill of Exceptions not Embodying Evidencie.—Upon an appeal from a judgment upon a judgment roll alone, nothing can be assumed or considered that does not appear upon the face of the roll. If that discloses error it cannot be assumed that the error was cured by matter not appearing in a bill of exceptions which form part of the judgment roll, though it does not purport to contain all the evidence.</p> <p>Action of Criminal Conversation—Proof of Intercourse Sufficient—Incidents Affecting Damages.—It is not necessary, in order to entitle a husband to recover in an action of criminal conversation, that he should show that the sexual intercourse between the defendant and the wife was accomplished by means of force, or against her will; but it is sufficient if he shows the mere fact of the intercourse. The means by which the intercourse was effected are hut incidents to increase or mitigate the damage.</p> <p>Id.—Immaterial Questions—Plaintiff’s Capacity—Paternity of After-born Child—Matrimonial Intercourse.—In an action of criminal conversation the plaintiff’s right of action depends solely upon the defendant’s carnal intercourse with the wife, and not upon the plaintiff’s impotence or capacity; and the question as to whether an after-horn child was begotten by the husband or the defendant, or as to whether there had been any matrimonial intercourse between the husband and his wife, is immaterial.</p>