Gregory v. Nelson

Citations

• 41 Cal. 278

Syllabus

<p>Appeal.—An appeal from a judgment and subsequent order of the Court denying appellants’ motion to modify the same, is only an appeal from the judgment.</p> <p>What Judgment should Be. — A judgment should be a simple sentence of the law upon the ultimate facts admitted by the pleadings or found by the Court.</p> <p>What Judgment should not Contain.—A judgment should not declare the existence of facts which are not within the issues made or tendered by the pleadings, nor should it declare the judgment of the Court upon such facts.</p> <p>Judgment on Pacts not in Issue.—If the judgment decrees the existence of facts not within any issues made or tendered by the pleadings, and then pronounces the judgment of the Court upon such facts, such part of the judgment is superfluous and void.</p> <p>Judgment must Accord with Pacts Admitted.—Any finding or judgment of the Court, repugnant to facts admitted by the pleadings, is erroneous.</p> <p>Judgment on Pleadings when Injunction is Asked.—If, in an action to enjoin the destruction of a ditch, the complaint avers the ownership by plaintiffs of the ditch for the conveyance of water, and that the ground over which it passes was vacant and unoccupied when it was dug, and that plaintiffs have used it for years for mining purposes, and the answer does not deny these allegations, nor set up any prior right of the defendants to the ground over which it passes, nor any claim or right of defendants to destroy it by reason of any custom, the Court should not, by its judgment, limit or restrain the right of plaintiffs in the use of its ditch, but on the pleadings should enjoin the defendants from destroying or interfering with the same, regardless of the testimony.</p> <p>Evidence must be Pertinent to the Issues.—The appellate Court will not presume that the Court below permitted evidence to be introduced on the trial to rebut facts admitted by the answer, nor will it presume that any evidence was received except such as was pertinent