The first appeal in this cause, taken July 19th, 1876, is from an order made on the 21st day of April, 1876, denying defendant's motion to vacate and set aside an order dismissing the defendant's cross-complaint directing judgment, etc., and is taken more than sixty days after the order was made, and is not within the time prescribed by law. ( Code of Civil Procedure, sec. 939.)
The second appeal was taken September 13th, 1876, from the judgment which was rendered August 18th, 1875, and decree filed August 18th, 1875, and was not taken within a year after rendition or entry of the judgment. ( Code of Civil Procedure, sec. 939.)
The second appeal is an appeal from the judgment, and on this appeal the action of the Court in dismissing defendant's cross-complaint, and ordering judgment, cannot be reviewed, there being no bill of exceptions or statement on appeal. In Douglas v. Dakin , 46 Cal. 67, the Court says: " This appeal being from the judgment, and therebeing no bill of exceptions or statement on appeal, we cannot consider the motion of plaintiff to strike out portions of the answer on the motion for judgment, or the rulings or orders made thereon. The case must be determined upon the judgment alone." In Nevada and Sacramento Canal Co. 43 Cal. 184, the Court says: " That an order striking out a portion of a pleading may be reviewed here on appeal from the judgment, is true; but it is no less true that such an order, being in itself no part of the judgment-roll, (Practice Act, sec. 203; Code of Civil Procedure, sec. 670) cannot be so reviewed, except it be supported by a statement on appeal, and here there is none." (Harper v. Minor , 27 Cal. 108; Sutter v. San Francisco , 36 Cal. 112; McAbee v. Randall , 41 Cal. 136.)
The complaint and answer warrant the judgment found. Want of recitals in a judgment does not affect its validity. (Green v. Swift , 50 Cal. 455.)
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
The appeal from the order denying the motion to vacate the order dismissing the cross-complaint, and to set aside the judgment, was not taken in time, and is therefore dismissed. Nor can the order dismissing the cross-complaint, and directing a judgment to be entered for the plaintiff, be reviewed on the appeal from the judgment, in the absence of a bill of exceptions or statement on appeal. (Douglas v. Dakin , 46 Cal. 49.)
It appears, however, from a recital in the judgment, that the cause was regularly called for trial, and the defendant failed to appear, whereupon the cross-complaint was dismissed; and thereupon, on motion of the plaintiff, a judgment was rendered in favor of the plaintiff on the pleadings. It is contended for the defendant that the judgment, rendered without proof, cannot be supported, because several material averments of the complaint were denied by the answer. Assuming, for the purposes of this decision, that the recitals in the judgment to the effect that the defendant failed to appear at the trial, and thereupon, the order sustaining the motion of the plaintiff for judgment on the pleadings, was made, constitute a material part of the judgment, and can be considered on an appeal from the judgment, we are, nevertheless, of opinion that the judgment for the plaintiff was properly rendered, and ought not to be disturbed.
The action is brought under sec. 738 of the Code of Civil Procedure, which provides that: " An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim." The complaint, after averring that the plaintiff is the owner in fee of the premises, proceeds to state how he acquired his right, to wit, by a deed from the defendant and her husband; and, after alleging the death of the husband, avers that, " notwithstanding the ownership of plaintiff, and the execution of said deed as aforesaid, [the defendant] sets up and claims still some estate or interest in said property above described, adversely to the plaintiff."
The statute evidently contemplates that whether the plaintiff be the owner in fee or not, if the defendant claims an interest adversely to his right or title, such as it is, he is entitled, in an action of this character, to have the adverse claim determined. In this view of the statute, we see no reason why the plaintiff may not state in the complaint the nature of his right or title, against which the defendant asserts an adverse claim. The answer in this case denies that the plaintiff is the owner in fee, and then proceeds to aver that the " deed" under which the plaintiff claims was intended as a mortgage. The answer does not deny that the deed was, in form, an absolute conveyance, but, as we understand it, admits that fact, and rests the defense solely on the ground that it was intended as a mortgage. This was an affirmative allegation, the burden of proving which was on the defendant; and as she failed to appear at the trial, and to offer evidence in support of the answer, judgment was properly rendered for the plaintiff. It was a misnomer to term it a judgment on the pleadings, when it was, in fact, a judgment for want of evidence on the part of the defendant, to support the affirmative defense set up in the answer. But the judgment being proper, it will not be disturbed because it was called by a wrong name.
Judgment affirmed.