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Abadie v. Carrillo

DOMINIQUE ABADIE, JUAN ABADIE, and MARELIUS ABADIE v. JOAQUIN CARRILLO

Abadie v. Carrillo, 32 Cal. 172 (1867)
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Court
California Supreme Court · State Highest Courts
Decided
July 1, 1867
Judges
Sanderson, Sawyer
Citations
32 Cal. 172
Cited by 19
Syllabus
Judgment Roll.—Until the amendment to the two hundred and third section of the Practice Act, the judgment roll was not required to contain the order sustaining or overruling a demurrer. Appeal on Judgment Roll.—If, prior to said time, a demurrer to the complaint was filed, and a judgment by default was entered, and the appeal rested on the judgment roll, and the same did not disclose what action was taken on the demurrer, the presumption was that the demurrer was disposed of, and that the necessary preliminary steps were taken to obtain judgment. Complaint por Goods Sold.—A complaint for goods sold, which avers that the defendant is indebted to the plaintiff in a certain sum for goods sold and delivered to him at his request, and that defendant has not paid for the same, states a cause of action.
Summary
Appeal from the District Court, Second Judicial District, Santa Barbara County. The following was the complaint upon which judgment was rendered: “ The plaintiffs above named complain of the defendant, and for cause aver: That on the 11th day of August, 1863, the defendant was indebted to the plaintiffs in the sum of one thousand four and twenty hundredths dollars ($1,004 20-100), on an account for goods sold and delivered by the plaintiffs to the defendant, at his request, in the City of Santa Barbara; and that no part thereof has been paid, and that there is now due them thereon, from the defendant, the sum of one thousand four and twenty hundredths dollars, with interest thereon from the 11th day of August, 1863. “ Wherefore they demand judgment as against the defendant, in the sum of $1,004 20-100 dollars, with interest from the 11th day of August, 1863, with costs.” Plaintiffs had judgment by default, and defendant appealed. The other facts are stated in the opinion of the Court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Sawyer

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By the Court, Sawyer, J.:

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 ii7the 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 *175 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.

Concurrence — Sanderson

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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, I should 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 *176 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.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 19 cases

View all citing references →
1874–1875: 11882–1883: 11884–1885: 11888–1889: 21894–1895: 11896–1897: 11908–1909: 31910–1911: 11914–1915: 21922–1923: 11952–1953: 11962–1963: 12022–2023: 22024–2025: 118742026peak 1908 · 3

Relies on it most ⓘ

  1. Weitzenkorn v. Lesser256 P.2d 947 (Cal. 1953)
  2. Sessions v. Pacific Improvement Co.206 P. 653 (Cal. Ct. App. 1922)
  3. Pike v. Zadig152 P. 923 (Cal. 1915)
  4. Rosina v. Trowbridge17 P. 761 (Nev. 1888)
  5. Bates v. Capital State Bank110 P. 277 (Idaho 1910)
  6. Solomon v. Vinson17 N.W. 340 (Minn. 1883)

Most recent

  1. Plastech Co., Ltd. v. Revere Packaging, LLCNo. 2:22-cv-01700 (E.D. Cal. Jan. 8, 2024)
  2. Global Commodities Trading Group, Inc. v. Beneficio De Arroz Choloma, S.A.No. 2:16-cv-01045 (E.D. Cal. May 6, 2022)
  3. Global Commodities Trading Group, Inc. v. Beneficio De Arroz Choloma, S.A.No. 2:16-cv-01045 (E.D. Cal. Mar. 22, 2022)
  4. Lewin v. Merck & Co., Inc.209 Cal. App. 2d 131 (1962)
  5. Weitzenkorn v. Lesser256 P.2d 947 (Cal. 1953)
  6. Sessions v. Pacific Improvement Co.206 P. 653 (Cal. Ct. App. 1922)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Wilkins v. Stidger, 22 Cal. 231 (1863) 34
Freeborn v. Glazer, 10 Cal. 337 (1858) 19
De Witt v. Porter, 13 Cal. 171 (1859) 2

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