Mr. Justice Sawyer delivered the following dissenting opinion, in which Mr. Chief Justice Sanderson concurred.
The appeal is from the judgment. There is no statement on appeal, and none of the grounds relied on by appellant to reverse the judgment are disclosed by the judgment roll. The answer of. defendant, Douglass, having been stricken out by the Court, the judgment roll—in our opinion—consists of the complaint, the summons, proof of service, the entry of default, and a copy of the judgment. The other orders embraced in the transcript form no part of the judgment roll, and cannot be reviewed on this appeal. There is nothing to show upon what any of them were based, or the circumstances under which they were made. They properly constitute no part of the record on appeal. If the appellant desired to have any of these orders reviewed, he should have introduced them into the record on appeal by a statement, together with such other matters constituting a part of the proceedings as would enable this Court to determine whether there was error or not. (Harper v. Minor, 27 Cal. 107.) Had he made a statement, and omitted anything necessary to a full understanding of the grounds upon which the orders were made, the respondent would have had an opportunity to supply the defect by amendment. He has had no such opportunity. The order striking out the answer, and the grounds of the motion to strike out, should have been brought to the attention of the Court in the same maimer. After the answer was stricken out, the document remained on the files as a part of the history of the case, but it was no longer, in legal contemplation, a pleading in till cause. There is nothing in the record *300which shows the grounds upon which the order was based, and we cannot tell whether it was properly made or not. It may be that it was struck out under section four hundred and twenty of the Practice Act, for a refusal by defendant to attend and testify at the trial. The presumptions are all in favor of the correct action of the Court. The striking .out of the answer, default and judgment were entered by the order of the Court, and the judgment recites that “ witnesses were sworn and examined by plaintiff and defendantsso there must have been in fact some kind of trial. But this is not inconsistent with the idea that the answer was properly struck out. The course of proceedings on the trial may well have been as follows : The plaintiff may have introduced testimony proving his case and rested; the defendant have presented his evidence and rested; then plaintiff may have called the defendant as a witness on his behalf in rebuttal, and the defendant having failed, or refused to appear and testify, plaintiff may have produced his subpoena, proved due service, and upon the failure or refusal of defendant to appeal- and testify in pursuance of the command of the writ, have moved the Court to strike out his answer and enter judgment in his favor on that ground, which motion the Court may have granted. If this was in fact the course of proceeding, there was no error. And there is nothing in the recitals of the judgment, or in the judgment roll—whether the answer is regarded as a part of the roll or not—inconsistent with such a course of proceeding. If this was hot the course of proceeding, or if there was in fact any error, there were three ways of bringing the error to the notice of this Court for review. The party might, at the time of the trial, have drawn up a bill of exceptions, stating that an answer had been filed; the proceedings on the trial; the circumstances attending, and the grounds of the motion; the ruling of the Court striking out the answer and his exception, and had it settled, signed by the Judge, and filed it in the cause. The bill of exceptions embracing the answer by reference or otherwise, would thus, under the provisions of the Practice Act, have become a part of the judgment roll, and *301would have presented the question. Or, after the trial, appellant might have set out the same matter in a statement on motion for new trial, or a statement on appeal. In either of these modes, the other party would have had an opportunity to introduce any matter favorable to himself, and had all the ' facts necessary to a correct adjudication of the question presented. But, as the case now stands, the respondent has had no opportunity whatever to show that there was no error. And the facts necessary to enable us to determine whether there was error or not, are not before us. In our opinion, the record—whether the answer is regarded as a part of the judgment roll or not—does not present the question sought to be raised, or affirmatively disclose error, and all presumptions are in favor of the ruling of the Court.
We see no error upon the judgment roll, and if there was any error in the proceedings, the appellant has failed to present it in such a form that we can review it.
There would seem to have been some negligence on the part of appellant. The order in the transcript—though not properly in the record—appears on its face to have been entered at the July term, 1864, and it expressly gave appellant leave to move to restore the answer upon good cause shown, and stayed all proceedings till the next term to enable him to do so. The next term was in November. No motion appears to have been made, no statement on appeal prepared, and no action of any kind taken till January 17th of the next year, when this appeal was taken.
We think the judgment should be affirmed.