Hunter v. Bryant

Citations

• 98 Cal. 247
• 33 P. 51
• 1893 Cal. LEXIS 899

Syllabus

<p>Pleading—Amended Complaint—Objection to Original Complaint.—Where an amended complaint, which is unobjectionable, has been filed in an action, an objection upon appeal from a judgment therein that the original complaint failed to state a cause of action is untenable.</p> <p>Id._Irregularity in Pleading Supplemental Matter— Objection upon Appeal. —Alleged irregularity in setting out material matters in an amended complaint, which should have been alleged by supplemental pleading, cannot be questioned for the first time upon appeal upon the claim of the failure of such complaint to state a cause of action.</p> <p>Id. — Statute of Limitations—Judgment by Default—Review upon Appeal.— The question of the statute of limitations cannot be raised upon an appeal from a judgment by default taken upon a judgment-roll containing neither answer nor demurrer.</p> <p>Vacating Judgment—Service of Summons—Question of Fact— Conflicting Evidence—Review upon Appeal. — Upon a motion to set aside a judgment, upon the ground that certain defendants against whom it was rendered had not been served with summons, the question as to whether or not the summons had been served upon them is one of fact, and where the evidence thereon is conflicting, a finding of the trial court that the service has been made will not be disturbed upon appeal.</p> <p>Id.—Discretion—Legal Right—Construction of Code.—An application to vacate a judgment for want of service of summons upon or appearance of a defendant, is not matter of discretion, but of pure legal right, and does not arise under section 473 of the Code of Civil Procedure.</p> <p>Id.—Appearance of Attorney—Evidence of Authority.—The appearance in court of an attorney, claiming to represent a litigant, is prima facie evidence of his authority to act, and in order to show want of authority upon the part of the attorney the litigant must present clear and convincing, evidence.</p> <p>Official Bond—Joint and Several Liability—Effect of Judgment agains