McDonald v. McConkey

The Court: Defendant filed an answer, and the relief granted to plaintiff by the judgment of the Court below was consistent with the case made by the complaint, and was embraced within the issues. (Code Civ. Proc. § 580.) The allegation of damages in each count of the complaint, with the exception of the words “ attorney’s fees,” is in the words of § 3336 of the Civil Code. The words “ attorney’s fees ” may be rejected as surplusage. The evidence is not before us, and it cannot be assumed that the jury included attorney’s fees in their verdict. The judgment should be affirmed. The order dismissing the motion for a new trial was an order “ after judgment,” and appealable, and the order was erroneous. (Calderwood v. Peyser, 42 Cal. 113.) Although there is but one transcript, there are two appeals before us, as distinct as if they had been separately noticed— one from the judgment, and the other from the order denying a new trial. It is hardly necessary to add, that, in sucli cases, the affirmance of the judgment on direct appeal therefrom, on the judgment roll, should not prevent the Court below from setting aside the verdict or findings (and the judgment based thereon), if it should be satisfied that the motion for a new trial should be granted. The judgment on direct appeal therefrom is affirmed. The order dismissing the motion for new trial is reversed, and the cause remanded for further proceedings on the motion for a new trial.