Nothing but the judgment roll can be considered on an appeal from a final judgment. (Wetherbee v. Davis, 33 Cal. 549.)
The bill of exceptions has no place in the transcript as it is not authorized by Secs. 188, 189 or 190 of the Practice Act, 33 Cal. (supra. )
It was never filed, as appears by the transcript, and its recitals contradict the record.
The interlocutory decree has no place in the transcript, because it is not appealed from, and because more than sixty days have elapsed from and after its entry, and before the appeal was taken.
Thetranscript does not identify the parts of the answer demurred to, and this Court cannot discern them under the circumstances.
The denial of the bond by Chapman cannot help Bird, Chapman having confessed the bill. (Kelly v. Wilson, 33 Cal. 690.)
The matters between Mrs. Chapman and Bird, are irrelevant.
The agreement between Cottle and Bird was in no way enforceable. (Stevenson v. Steinburg, Sac. Union, July 26, 1867, July Term, 1867; Wilbur v. Howe, 8 Johns. 444; Doolan v. Hard, 6 Johns. 194; 1 Hittel, Art. 1502, 25 Cal., 653.)
An agreement to be specially performed must be certain. (Carr v. Duval, 14 Pet. 77; 17 How. 340, S.C., U.S.)
Chapman could redeem after the sale, hence Cottle's interest in the land was not sold under the agreement, for he had none. (Page v. Rogers, 31 Cal. 293.)
And, moreover, it is not averred that it was for the sale of Cottle's equitable interest.
JUDGES: Rhodes, C. J., delivered the opinion of the Court, Crockett, J., Sprague, J., and Wallace, J., concurring. Temple, J., expressed no opinion.
OPINION
RHODES, Judge
The appeal was taken from the judgment alone. The plaintiff objects, under rule thirteen, to certain portions of the transcript. The objection must be overruled, as to the order sustaining the demurrer to the cross-complaint, and the bill of exceptions, because they properly constitute a part of the judgment roll. The motion to strike out portions of the answer will also be retained, as it is referred to in the bill of exceptions--one of the points therein saved, being the order sustaining the motion. The statute does not expressly provide that an interlocutory judgment shall constitute a portion of the judgment roll, but as such judgments often determine the rights of the respective parties, there is a manifest propriety in inserting them in the judgment roll. We are of the opinion that an interlocutory judgment comes within the spirit and meaning of the statutory requirement, that the judgment shall constitute a portion of the judgment roll.
There are several of the grounds of demurrer which we cannot consider, for the reason urged by the plaintiff--that it cannot be ascertained from the transcript, to what portions of the cross-complaint the several grounds respectively apply. Distinct portions are demurred to, and such portions are described by reference to the pages and lines of the pleadings; but there is nothing in the transcript to indicate to what portions the demurrer applied.
The defendant, Bird, in order to maintain his claim to affirmative relief, is compelled to rely upon the contract entered into between him and Cottle, in respect to the purchase of the interest of Chapman in the premises--at the sale under the execution issued upon the judgment of Cottle against Chapman. It was, among other things, agreed between them that Cottle would not bid at the sale, but that Bird should be allowed to purchase Chapman's interest in the lands. The direct effect of that branch of the agreement, was to prevent bidding at the sale under the execution; and it cannot be doubted that such an agreement is contrary to public policy, and therefore void. This question properly arises on the demurrer, on the ground that the cross-complaint does not state facts sufficient to constitute a cause of action against the plaintiff; and the demurrer was correctly sustained on that ground. The whole contract being vitiated by this agreement, the defendant was left without any cause of action against the plaintiff, as the assignee of the Cottle judgment, and the purchaser at the execution sale.
Judgment affirmed.