Stoddart v. Burge

Citations

• 53 Cal. 394

Syllabus

<p>Appeal ekom Okdeb Dismissing Cboss-Complaint.—An order dismissing a cross-complaint and directing a judgment for the plaintiff cannot he reviewed on an appeal from the judgment, in the absence of a hill of exceptions or statement on appeal.</p> <p>Pleading—Complaint in Action to Quiet Title.—In an action brought under sec. 738 of the Code of Civil Procedure, to determine an adverse claim to real property, it is not essential that the complaint should aver the plaintiff to be the owner in fee; and it will be sufficient if it appears that the plaintiff claims an interest in the land, and that the defendant asserts a claim of title adverse to the plaintiff’s claim.</p> <p>Samp—Deed Absolute in Eobm.—In such an action, when the plaintiff claims under a deed from the defendant absolute in form, it is not bad pleading to state that fact in the complaint.</p> <p>Same—Rueden of Pboof.—In such a case, if the answer admits the execution and delivery of the deed, hut avers that it was intended as a mortgage, the burden of proof is on the defendant to establish that fact.</p> <p>Same—Default of Defendant.—And if the defendant fails to appear at the trial, the Court may properly enter a judgment for the plaintiff, for want of evidence to support the answer.</p> <p>Same—Misnomeb.—In such a case, it is a misnomer to designate the judgment as a judgment on the pleadings; but, having been properly entered, it will not be disturbed because it is called by a wrong name.</p>