Los Angeles herald., 1892-03-01
ANOTHER KINK.
A Decision on the Cable Road
Tangle.
Judge Wade Overrules a Num-
ber of Demurrers.
The Opinion Contains Some Inter-
esting Points.
1t Is in the Case of Edward Russell VS..
the Pacific Railway-The Mat
ters Which Are Con-
sidered.

Yesterday Judge Wade of the superior
court rendered an opinion overruling
all of the demurrers of the defendant in
the case of Edward Russell va. Pacific
Railway. The opinion is as follows:
Therel are several demurrers submit
ted in this case which, with one excep-
ton, were upon the ground that the
complaint does not state facts sufficient
to constitute cause of action; the
complaint, however, sets up sufficient
facts to constitute cause OF action
against each of the demurrants, and
for this reason the demurrers, 30 far as
they are based upon that ground, are
overruled. This ground of demurrer
raised the question whether the plain
tiff, if all the facts alleged in complaint
are taken as true, is entitled to any re-
lief against the defendant whatever; !;
when the complaint shows he is en-
titled to any kind of relief within the
jurisdiction of the court to grant, the
demurrer will be overruled; but in the
demurrer of William Alvord there are
general specific grounds stated, to-
wit: Misjoinder of parties defendant, for
the reason that defendant is improperly
Joined as such with the Los Angeles
Gable Railway company. The demurrer
is overruled on this ground. Again,
that several causes OF action have been
improperly united in said complaint, to
wit: A cause of action to have receiver
appointed for the Pacific Railway COM
pany to operate it's alleged railway; a
cause of action to discover the names OF
the stockholders; cause of action to
levy and collect an assessment on the
stock OF said alleged Pacific Railway
company. 1t is sufficient to dispose OF
this objection, that these are not causes
of action, hut are merely incidents to
one cause of action as alleged in the
complaint. These are but different
kinds of relief that are asked, and so far
as the objection is raised to the appoint
ment of receiver, that is merely an in
cident of one of the kinds of relief de.
manded.
1t is further objected that the COM
llaint is unintelligible and uncertain
for divers and sundry reasons, among
others, that it cannot be aecertained in
the amended complaint that the Pacific
Railway company is or ever was cor
poration; it cannot be ascertained in
the complaint what property was con-
veyed by trust deed to the Los Angeles
Gable Railway company, nor what prop
erty the Pacific Railway company con-
veyed by trust deed to the Illinois Trust
and Savings bank, or what street rail
ways are known as the Los Angeles
| Gable railway system, or to whom any
street railways are known as the Los
Angeles Gable Railway system, or who
the original stockholders of the Los An
geles Cable Railway company were OF
are, or whether the persons to whom it
is alleged the capital stock OF the Paci tic
Railway company was issued are the
same ss the said original shareholders,
or upon what terms the
original shareholders receive GER
tificates, ETC., or what property
the said Pacific Railway company
has now or has at any time been pos
sessed of or had in control, etc. Suffice
it to say that go far as these matters are
essential, they are alleged with suffi'
cient intelligibility and certainty.
The further objection is raised that
there is defect of parties. to wit: The
Illinois Trust and Savings bank, William
| Alvord and Thomas Brown, trustees
| In an action OF this kind these Would DE
proper but not necessary parties; that
is, the plaintiff might obtain relief O.
some kind without their appearing al
parties defendant. Even if these omit
ted parties were necessary to some form
of relief demanded by the complaint
that would not be such defect as would
render the complaint demurable upor
this ground, unless there was no kind O.
relief. that could be granted to the
plaintiff without making them parties
defendant.
A great deal of learning OF counse
has been employed in discussing thu
question whether the court has jurisdic
ton in this case to appoint a receiver
1t Is obvious that that question canno
be raised by demurrer, for this reason
that it is not speci6cground prescribed
under the code, and cannot be embraced
under the general grounds, because
it is merely an incident to relief tina
may be demanded in certain cases, anC
if this question may be raised, it woult
seem that it should be raised only by
some party to the action, or some ONT
affected adversely who was or could bt
regarded as aggrieved by such appoint
ment. The demurrer of defendant