Appellant's first point cannot be raised in this Court. He appeals upon the judgment roll, without statement or bill of exceptions. No error on this point seems tohave been assigned below, and this Court will not consider it when raised here for the first time. (Morgan v. Hugg , 5 Cal. 409; McCartney v. Fitz Henry , 16 Cal. 184; Collier v. Corbett , 15 Cal. 183.) This Court will intend that the demurrer was properly overruled before judgment. (Seale v. McLaughlin , 28 Cal. 673.) The complaint in this cause is a literal copy from Abbott's Form Book, p. 79. This form appears to have been supported in the following cases, among many others: Allen v. Patterson, 3 Seld. 476; Tucker v. Rushton, 2 Code R. 59; Adams v. Holley, 12 How. Pr. R. 326. And in the case of Cudlip v. Whipple, Abbott's Pr. R. 106, a motion to make such a complaint more definite and certain was denied by Mr. Chief Justice Oakley. (See also Chamberlain v. Kaylor, 2 E. D. Smith's C. P. R. 134.)
JUDGES: Sawyer, J. Mr. Justice Sanderson delivered the following concurring opinion, in which Mr. Justice Rhodes concurred.
OPINION
SAWYER, Judge
The appeal rests on the judgment roll alone. The judgment roll does not disclose what the action upon the demurrer was. Nor is it to be expected that it would, for, before the recent amendment, section two hundred and three did not require it to contain the order sustaining or overruling the demurrer. It, therefore, does not appear whether time to answer was given or not. The defendant appeared by demurring, and the subsequent proceedings were necessarily had under the direction of the Court. Final judgment was entered in open Court, by order of the Court, and all intendments are in favor of its correct action. Nothing to the contrary appearing, it must be presumed that the demurrer was disposed of, and that the necessary preliminary steps which are not required to appear in the judgment roll were taken.
The point of the demurrer is, that the complaint does not state the value of the goods, or a promise to pay the sum claimed. The complaint is in the precise form of the complaint which was held to be sufficient by the Court of Appeals of New York in Allen v. Patterson, 3 Seld. 476. The Court say (479): " It contains every statement of fact necessary to constitute a good indebitatus count in debt, according to the mode of pleading before the code." (2 Ch. Pl., Ed. 1812, p. 142; Emery v. Fell, 2 Term. R. 28; 1 Ch. Pl. 345.) Our predecessors frequently held that the ordinary forms of counts is indebitatus assumpsit, for goods sold and delivered, etc., were sufficient. (Freeborn v. Glazier , 10 Cal. 338; DeWitt v. Potter , 13 Cal. 171; Higgins v. Horrell , 18 Cal. 333.) But in Wilkins v. Stidger , 22 Cal. 235, the precise question now presented was raised, and the complaint held to be good. Mr. Justice Crocker says: " The first error assigned, is, that the complaint does not state facts sufficient to constitute a cause of action, because that portion of the complaint which sets forth the claim for professional services does not aver a promise to pay, or that the services were of any value. We think the complaint is in this respect sufficient. It follows substantially the form of a count in debt, under the old system of pleadings." As in the case of Allen v. Patterson, before cited, it was put upon the ground, that it would be a good count in debt at common law. Upon the authority of these cases we hold the complaint sufficient.
Judgment affirmed.
CONCUR
SANDERSON
Mr. Justice Sanderson delivered the following concurring opinion, in which Mr. Justice Rhodes concurred:
If the question presented by the record in this case was new, Ishould be inclined to hold the complaint bad, upon the ground that it does not state facts sufficient to constitute a cause of action. Notwithstanding the many decisions to the contrary, I have never been able to regard the common counts as consistent with our code of practice, which was intended to provide a uniform mode of pleading in all cases. The fundamental rule in our system of pleading requires a statement of the facts constituting the cause of action or defense in ordinary and concise language, so that the precise matters intended may appear upon the face of the pleading, and the opposite party need not be put upon his outside knowledge for the purpose of ascertaining what is meant. I do not think the common counts satisfy this rule, and must regard their retention as impairing the symmetry of our system; but a contrary view was adopted at the outset and has been uniformly adhered to since. The matter is not of sufficient importance to justify us in disturbing a rule so long settled. For these reasons I concur in the judgment.