Opinion
Department Two
Appeal from a judgment of the Superior Court of Alameda County.
COUNSEL
The attempted pleading of the probate of the will of the deceased, and the appointment of defendant as executor, is abortive, as it states neither the ultimate fact necessary to give jurisdiction nor complies with the requirements of the code. ( Code Civ. Proc., sec. 456; Young v. Wright , 52 Cal. 407; Judah v. Fredericks , 57 Cal. 389.) The plaintiff attempts to charge the defendant as executor, and he cannot now claim the judgment to be personal. Pleadings are to be construed most strongly against the pleader. (Potter v. Fowzer , 78 Cal. 493; Shain v. Belvin , 79 Cal. 262.)
Nye & Richardson, for Appellant.
Dodge & Fry, for Respondent.
The allegations concerning the appointment of defendant as executor are amply sufficient. (McCutcheon v. Weston , 65 Cal. 37; Morrell v. Morgan , 65 Cal. 575; Wise v. Hogan , 77 Cal. 184; Wise v. Williams , 72 Cal. 544; Munro v. Dredging Co ., 84 Cal. 515; 18 Am. St. Rep. 248.) The decisions cited by appellant do not apply where an executor is defendant. (Wise v. Williams , 72 Cal. 544.) The contention that the complaint is ambiguous and uncertain can only be raised by special demurrer, and cannot be entertained for the first time in this court on appeal; nor can it be made under the contention that the facts set forth in the complaint are insufficient to constitute a cause of action. (Demartin v. Albert , 68 Cal. 277; Roberts v. Eldred , 73 Cal. 394; Blasingame v. Home Ins. Co ., 75 Cal. 633; Heeser v. Miller , 77 Cal. 192.) Conceding that a personal judgment is not proper, that is no authority that the complaint does not state facts sufficient to constitute a cause of action. Under such circumstances, the only duty of the supreme court is to modify the judgment so as to make it conform to the allegations of the complaint. (Rice v. Inskeep , 34 Cal. 224; Estate of Schroeder , 46 Cal. 305; Preston v. Knapp , 85 Cal. 559.) If plaintiff had a cause of action upon which he was entitled to judgment, the judgment will not be reversed, however defectively his cause of action may have been stated. (Stanwood v. Sage , 22 Cal. 517; Hallock v. Jaudin , 34 Cal. 167; Hibernia S. & L. Society v. Ordway , 38 Cal. 679; San Francisco v. Pennie , 93 Cal. 465.) But the complaint is amply sufficient; it fully supports the judgment, and the judgment is the only proper one. (People v. Houghtaling , 7 Cal. 348; Gunter v. Janes , 9 Cal. 659; Hardy v. Hunt , 11 Cal. 350; Stanwood v. Sage , 22 Cal. 517; Lathrop v. Bampton , 31 Cal. 23; 89 Am. Dec. 141; Theller v. Such , 57 Cal. 461; Duff v. Duff , 71 Cal. 533; Roach v. Caraffa , 85 Cal. 444; Merrick's Estate, 8 Watts & S. 402; Thompson v. Perkins, 3 Mason, 232; Beach v. Forsyth, 14 Barb. 499; Mason v. Waite , 17 Mass. 560; Vischer v. Yates, 11 Johns. 28.)
JUDGES: McFarland, J. De Haven, J., and Sharpstein, J., concurred.
OPINION
McFARLAND, Judge
[31 P. 568] Defendant made default in the court below, and judgment was rendered for plaintiff. Defendant appeals upon the judgment roll; and the point insisted on for a reversal is, that the complaint is defective, because plaintiff, by said complaint, has not properly pleaded either the probate of the will of Julia Kirsch, deceased, or the appointment of defendant as executor.
We are satisfied that the probate of the will and the executorship of appellant are sufficiently pleaded. (Weller v. Dickinson , 93 Cal. 108; Wise v. Williams , 72 Cal. 547; Munro v. Dredging Co ., 84 Cal. 515; 18 Am. St. Rep. 248.) But the complaint states sufficient facts for a personal judgment against appellant. If there were any valid objections to the complaint on the ground of ambiguity or uncertainty, such objections could have been taken only by special demurrer. (Demartin v. Albert , 68 Cal. 277; Blanc v. Klumpke , 29 Cal. 156; Blasingame v. Home Ins. Co ., 75 Cal. 633; Heeser v. Miller , 77 Cal. 192.)
The judgment is affirmed.