McDonald v. McConkey

Citations

• 57 Cal. 325

Syllabus

<p>Complaint—Surplusage — Pleading—Presumption.—In an action for the conversion of personal property, the complaint alleged attorney’s fees as an element of damage. Held, that this allegation may be regarded as surplusage, and the jury will be presumed to have disregarded it.</p> <p>Appeal—Order—New Trial.—An order dismissing a motion for a new trial is erroneous, and such order, if made after judgment, is appealable.</p> <p>Id.—Practice.—Where there is an appeal from a judgment, and also from an order dismissing a motion for a new trial, an affirmance of the judgment and a reversal of the order should not prevent the Court below from setting aside the judgment, and proceeding to grant a new trial.</p>