Feely v. Shirley

By the Court, Niles, J.: The ruling of the Court in striking out a portion of the answer cannot be reviewed upon this appeal, since it forms no part of the judgment roll. (Dimmick v. Campbell, 31 Cal. 238; Moore v. Del. Valle, 28 Cal. 174.) The motion for a nonsuit was properly denied. The breaking of the flume was distinctly alleged in the complaint, and the answer took issue upon the wrongful character of the act merely, but did not deny its commission. The breaking was, therefore, an admitted fact; and, conceding the plaintiff’s light of property in the flume, no proof of [371] the breaking was requisite to establish his right to recover at least nominal damages. The testimony in the case was conflicting, and there appears sufficient testimony to support the findings of the Court upon all the issues made by the pleadings. Judgment and ordér affirmed.