1-376 82 Cal. 65-8. Opinion of the Court-Shafter, J. E. F. JONES AND H. H. HEWLETT v. JAMES FROST. AVERMENT THAT NOTE HAS NOT BEEN PAID.-In an action on a promissory note, an allegation in the complaint that "no part of said note, principal or interest, has been paid," is a sufficient averment of a breach. WAIVER OF RIGHT TO HAVE A CHANGE OF VENUE.-If a defendant, sued in a county where he does not reside, demurs to the complaint, and the demurrer is sustained, and he then demurs to an amended complaint before giving notice of a motion for change of venue, he waives the right to have the case tried in the county where he resides. 1 AMENDED COMPLAINT.--The filing of a new complaint after a demurrer has been sustained is not the commencement of a new action. ERROR IN ALLOWING COSTS.-If the Court adds to the judgment the costs of the prevailing party after the time for filing the same has expired, and after an appeal has been perfected, the error can only be corrected by an appeal from the order. APPEAL from the District Court, Fifth Judicial District, San Joaquin County. The motion for a change of venue was based on affidavits. The Court overruled the motion and then overruled the second demurrer. No answer was filed. Plaintiffs recovered judgment, and defendant appealed from the judgment. The other facts are stated in the opinion of the Court. John B. Hall, for Appellant. The breach assigned is, "That no part of said note, principal or interest, has been paid." A traverse of this averment does not amount to a plea of payment of the whole debt, but only that some part has been paid. The allegation must be, "That the debt or the note has not been [246] paid," so that when denied an issue is created by which payment is affirmed on the one side and denied on the other, and the defense made as broad as the alleged cause of action. (See Frisch v. Caler, 21 Cal. 71.) Tyler & Cobb, for Respondents. By the Court, SHAFTER, J.: This is an action on a promissory note. 1. Cited, Barber v. Reynolds, 33 Cal. 501; McFadden v. Ellsworth M. & M. Co., 8 Nev. 60. Opinion of the Court-Shafter, J. First. The first error assigned is that the demurrer to the complaint was improperly overruled, the assignment of the breach being, as is contended, subtantially defective. The breach assigned is: "That no part of said note, principal or interest, has been paid." We consider that there is no defect in this averment, either substantial or formal. Second. It is further insisted that the Court erred in refusing to transfer the case for trial to the county of defendant's residence. It appears from the record that the defendant demurred. to the original complaint; that the demurrer was argued, submitted and sustained; that the plaintiff, by leave given, filed an amended complaint, to which the defendant, on the 6th of May, 1864, also demurred; and that on the eighteenth of that month he gave notice of his intention to move for a change of venue. The proceedings prior to the notice amounted to a waiver, on the part of the defendant, of his right to have the action tried in the county where he resided. (Pearkes v. Freer, 9 Cal. 649.) The appellant is mistaken in supposing that the filing of the amended complaint was the commencement of a new action. The new complaint doubtless superseded the original and destroyed its effect as a pleading, as was held in Gilman & Co. v. Cosgrove (22 Cal. 356), but it did not go to the identity of the action. Third. The third specification of error is: "That the Court had no power to add to the amount of the judgment a sum for costs, after time for filing a memorandum had expired, and after appeal perfected." The judgment was entered August *6th, 1864, and the appeal therefrom [247] was perfected on the tenth of that month, and on the twentieth the order for costs was applied for and granted. The order complained of was made ten days after the Court had lost jurisdiction of the case by the perfecting of the appeal, and the proper and only remedy for the defendants was by appeal from the order. The judgment is affirmed. Statement of Facts. Cal.283 123 103 IN THE MATTER OF EDWARD RING. HABEAS CORPUS -The doctrine of res adjudicata does not apply to proceedings on habeas corpus. SECOND APPLICATION FOR HABEAS CORPUS.-The decision of one Court or 2 AUTHORITY TO DETAIN A PRISONER.-A certified copy of the judgment prop- THE petitioner, Edward Ring, was indicted in San Mateo County. The case was transferred to the District Court for trial. On the 23d of March, 1865, the defendant was found guilty by a jury of the crime of manslaughter. The next day he was sentenced by the Court to imprisonment in the State Prison for the term of three years. The Clerk entered in the minutes of the Court the judgment of the Court in the following form: "The People v. Edward Ring, March term, 1865. The defendant, Edward Ring, having been convicted of the crime of manslaughter, and the hour having arrived for pro[248] nouncing *judgment in this cause, and the defendant, with his counsel, being present in Court, and he having been informed by the Court of the nature of the indictment, of his plea thereto, and of the verdict, and the defendant having nothing further to say why judgment should not be pronounced, the Court proceeded to pronounce its judgment as follows: That the defendant, Edward Ring, be 1. Approved, Ex parte Dobson, 31 Cal. 499; Matter of Brown, 32 Cal. 49; People v. Trim, 37 Cal. 275. 2. Approved, Ex parte Gibson, 31 Cal. 623. Statement of Facts. confined in the State Prison of the State of California for the term of three years, and ordered that judgment for costs be entered against him." The Clerk also entered in the Civil Judgment Book the following judgment: "The People of the State of California v. Edward Ring— No. 426. This cause came on regularly in its order for trial, upon an indictment found in the County Court of the County of San Mateo, for the crime of murder, and transmitted to this Court for trial. "The defendant being present in person in Court was duly arraigned, and entered a plea of not guilty of the offense charged. "Messrs. Scofield and Barnes appearing for plaintiff, and the defendant being present in person in Court, and being also represented by his attorneys, Messrs. Campbell, Fox & Campbell, the trial proceeded; a jury of twelve persons were regularly impaneled and sworn to try the cause; witnesses on the part of plaintiff and defendant were sworn and examined. After hearing the evidence, the arguments of counsel, and the instructions of the Court, the jury retired, and subsequently returned into Court, and being called, answered to their names and said that they found. a verdict of guilty of manslaughter against the defendant; and subsequently, on the 24th day of March, a. D. 1865, the defendant being present in person in Court, with his counsel, and the Court having previously informed him of the nature of the indictment and of his plea, and of the verdict, and asking him if he had any legal cause to show why judgment should not be pronounced against him, and said defendant answering and saying that he had nothing *further to say—whereupon the Court rendered its [249] judgment as follows: "That he, the said defendant, Edward Ring, be confined in the State Prison of the State of California for the term of three years, and that a judgment for costs be entered. against him. "Wherefore, by reason of the law and the premises afore Argument for Petitioner. said, it is ordered, adjudged, and decreed, that the defendant, Edward Ring, be confined in the State Prison of the State of California for the term of three years; and that said plaintiff do have and recover of and from the said defendant his costs of this suit, amounting to the sum of one. hundred and thirty-two dollars and thirty cents ($132.30). Judgment rendered, March 24, 1865. "By John Ames, Deputy." "THOMAS H. NOBLE, Clerk. A certified copy of the judgment entered in the Civil Judgment Book was delivered to the Sheriff who conveyed the prisoner to the Penitentiary, and handed the same to the Warden. An application was then made to the District Judge for the discharge of the prisoner on habeas corpus. The Judge refused to grant the discharge. Afterwards the prisoner applied to the Supreme Court to be discharged on habeas corpus. The Warden, by his return to the writ, stated that he held the petitioner in his custody in the State Prison by virtue of a judgment of the District Court in and for the County of San Mateo, at the March term, 1865, a certified copy of which judgment was attached to the return. The copy thus attached was a copy of the judgment entered in the Civil Judgment Book. The Court holds that a certified copy of the judgment entered by the Clerk in his minutes would have been sufficient authority for the detention of the prisoner. [250] *Campbell, Fox & Campbell, for Petitioner. The first objection to the alleged judgment is that it does not state "the offense for which the conviction has been had," as required by section four hundred and sixty-two, Criminal Practice Act. It is silent as to the party alleged to have been killed, as to the time, and as to the place. It merely states "that the jury said that they, the jury, found a verdict of manslaughter against the defendant." There is even no adjudication or judgment by the Court upon that verdict that he is so guilty. |