O'Shea v. Wilkinson

Paterson, J.

The transcript contains what purports to be copies of the pleadings, order overruling the demurrer, minutes of the court, findings, and judgment, with a certificate of the clerk attached, which states that they are correct, but does not say that they constitute the judgment roll. Respondent claims that we cannot consider matters contained in these papers without a certificate of the clerk that they are copies of the records which constitute the judgment roll. This contention cannot be sustained. The code specifies what documents shall constitute the judgment roll. Except in cases of default, it is made up by attaching together “ the pleadings, a copy of the verdict of the jury or finding of the court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer, or relating to change of parties, and a copy of the judgment.” (Code Civ. Proc., sec. 670.) It is no part of the duties of the clerk to certify that the papers contained in the transcript constitute the record on appeal (Hayne on New Trial and Appeal, sec. 268), although it is the general practice, and is proper for the clerk in his certificate to state that the transcript contains a copy of the judgment roll. In the absence of a showing to the contrary, we must presume that the pleadings, order, findings, and judgment mentioned in the certificate are those which constitute the judgment roll. If they do not, it is an easy matter for the respond *456 ent, upon suggestion of diminution of the record, to have the transcript corrected here.

The complaint stated a cause of action against Agnes Stine, an incompetent person, and the summons was served upon her personally. She appeared and answered by her general guardian, Wilkinson, on June 27, 1889. On December 13, 1889, the plaintiff filed an amended complaint. On December 16th, by consent of all parties, the action was dismissed as against the defendant Agnes Stine, and on the same day a demurrer was filed by Wilkinson, on the ground that the amended complaint did not state facts sufficient to constitute a cause of action. This demurrer was overruled, and thereafter Wilkinson filed an answer denying specifically the allegations of the complaint.

The demurrer of Wilkinson to the amended complaint ought to have been sustained; it stated no cause of action against Wilkinson. The complaint showed on its face that he was not the real party in interest. An executor, administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue or be sued without joining with him the persons for whose benefit the action is prosecuted; but a guardian does not belong to any of these classes. The guardian appears in the action simply to manage and take care of the interests of the infant when he is a party to the action, and “is no more a party to the action than the attorney who appears in an action for one who has attained his majority is a party to the suit in which he enters his appearance.” (Emeric v. Alvarado, 64 Cal. 593 ; Justice v. Ott, 87 Cal. 530 .)

It is claimed by respondent that at most there was but a defect of parties, an objection which was waived by a failure to demur or answer on that ground. It is not a case of a mere defect of parties; a dismissal as to the ward was in effect a dismissal of the action itself, because no attempt was made to charge the defendant in his individual capacity, and he could not represent his ward in the action unless she was a party thereto. *457 There is nothing upon which an amendment can be predicated, and the action must therefore he dismissed. (Fox v. Minor, 32 Cal. 111 ; 91 Am. Dec. 566 .)

Judgment reversed, with directions to the court below to dismiss the action.

Harrison, J., and Garoutte, J., concurred.