McFadden v. Ellsworth Mill & Mining Co.

By the Court, Whitman, J.: The pleadings and evidence in this case fully support the judgment. Indeed, so far as the substantial merits are concerned, the district court has adopted the theory of appellant’s answer; and has only failed to fully support the same by reason of absence of proof of certain matters, not made upon the trial, apparently upon the supposition that there were two complaints in the suit, one original and one amended; and that the matter referred to was affirmatively stated by respondent in the original. The amended complaint is in itself a full, distinct, and complete pleading, and entirely supersedes the original. Gilman v. Cosgrove, 22 Cal. 356; Jones v. Frost, 28 Cal. 245; Barber v Reynolds, 33 Cal. 498. Not only was it not the [61] duty of the district judge to notice it, but he had no right nor authority so to do. There is nothing in the question of costs as presented which can be considered on appeal. The order and judgment are affirmed. Garbee, J., did not participate in the foregoing decision.