delivered the following dissenting opinion:
On the application of the respondent to supply the record, the court granted the order. I could not agree with the majority of the court in the allowance of that motion, and I cannot now agree with them in considering matters outside of the judgment roll, nor in the final conclusion reached upon the whole case.
*105The judgment roll shows that the respondent brought suit, as administrator, for possession of a pareel of a ground. An answer was filed and then withdrawn by leave of court. Thereafter there was a judgment for the respondent in .default of answer. From this judgment defendant below has appealed to this court.
There are but twp questions necessary to be referred to in the case:
First. Can this court consider matters outside of the judgment roll when the appeal is from the judgment and there is no statement? I had considered that question long since settled under similar codes of practice, and even in this Territory at least as far back as 1873, in the case of Hussey v. Smith, 1 Utah, 129.
These extraneous matters brought here upon the suggestion by respondent, of a - diminution of the record, consist of an answer which was filed and afterwards withdrawn by the party filing it, also the defendant’s instructions to withdraw answer and to consent to judgment, also the defendant’s motion to withdraw answer, also the order of the court allowing the withdrawal, the defendant’s entry of consent for judgment, the order of court confirming the judgment as entered, the motion of defendant to vacate judgment, and the order of court denying such motion. If we should consider these outside matters the case would not be altered. The judgment as entered was confirmed. The defendants consented to the entry of a judgment by consent, but this was never done, but instead thereof a judgment by default was entered. The respondent had full opportunity to have his judgment corrected in the court below, when the appellant moved the court to vacate. Had he consented to the vacating, such other judgment as was proper could have been entered.
We have here the novel spectacle of a party having a judgment which he objects to having disturbed by appeal, but in the same breath says that it is not correct, and that he never asked for nor wanted such a judgment. Who is to blame for *106all this? If a party has a judgment which is not supported by his complaint, it would seem very strange that this court should allow it to stand, there being no exception to the time or manner of appeal.
The majority opinion of the court very properly admits that nothing but the judgment roll can be considered, and that none of the papers, orders or 'pro ej.lings which respondent asks to be recognized and considered as part of the record, are a part of the judgment roll. Yet notwithstanding such admission, the court, in the majority opinion, does recognize and consider these extraneous matters as part and parcel of the judgment roll, and the judgment is one of default. The statutes nowhere contain any passage, section or clause countenancing such a thing, and I do not think that one solitary respectable authority can be shown favoring it, under a practice act similar to ours in regard to what constitutes the judgment roll, when the judgment is by default. Compiled Laws, 1428, p. 457.
If we deem, or could deem, the judgment any other than a judgment in default of answer, yet none of these extraneous matters could be considered under the statutes, unless they could be brought here by statement, and that is not done. Compiled Laws, 1428, p. 457.
The second clause of the section referred to, provides that “ in all other cases ” (aside from judgments in default of answer) the judgment roll shall consist of the “ summons, pleadings, verdict of the jury or findings of the court, the commissioner or referee; all bills of exceptions taken and filed in said action, copies of orders sustaining or overruling demurrers, a copy of the judgment, and copies of any order relating to a change of parties.” None of the matters which respondent asks to have considered as a part of the record, and which this court has in the majority opinion considered as such, can be included under either of the specifications or classes designated in that second clause just quoted, unless possibly that the answer might be included under the head of *107il pleadings.” The answer after withdrawal is no longer a pleading in the case. If the answer remained as a pleading, then the judgment could not have been in default of answer. The judgment appealed from ic, upon its face, one in default of answer, and not upon the answer, and we are bound by the judgment as we find it. The answer, after withdrawal, although no part of the pleadings, remains with the files of the case in the court below, yet not as a part of the record, but merely as a part of the history of the case. The respondent has taken no exceptions in the court below to anything done there, and he has taken no appeal. He cannot complain if he has not taken such judgment as he wishes he had done. He is bound by it, but the opposite party is not.
It is said, however, that under section 1561 of the Compiled Laws, all of the orders amongst these outside matters can be considered by this court. That section reads as follows:
“(1561.) Sec. 336. Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.” The only “ intermediate order ” which respondent asks us to consider is an order “ allowing the withdrawal of the answer.” Such an order does not “ involve the merits ” nor “ affect the judgment.” But assuming that it did in fact “involve the merits ” and “ affect the judgment,” yet we could not consider it unless we utterly disregard all rules which should govern in such cases. The section referred to (§ 336) presupposes a statement in the case, for otherwise it is not in harmony with the other sections of the statute which show what can be sent to this court when there is no statement. The only mode pointed out in the statute whereby this court can review intermediate orders, is to bring them into the record by a statement. Harper v. Minor, 27 Cal. 107; Wetherbe v. Carroll, 33 Cal. 549.
It is said that these matters, presented by the respondent, may be considered by the court under the eighth rule of the court. That rule expressly applies to only cases where there *108is shown to be some “ error or defect in the transcript.” Nothing of the kind has been shown here, nor attempted to be shown. The transcript contains all that the law says it shall contain, and these extraneous papers, orders, etc., can in no view of the case, as I consider, be treated as a part of the record.
It is said that the refusal of this court to consider the papers, etc., referred to, would work a hardship upon the respondent. This is impossible. If he does not have a good judgment he alone is to blame, — it is his judgment. Certainly the defendant will not be punished for the respondent’s neglect of his own business. And, besides, the respondent cannot justly complain, for he had the opportunity, upon his own showing, to have the judgment reopened, but refused to do so.
Upon the merits of this case there is but one question to consider: Does the complaint support the judgment?
The respondent sues as administrator of the estate of Charles Roger, deceased, and in the complaint alleges, amongst other things, “ that Charles Roger, late of Salt Lake City, Salt Lake County, Territory of Utah, was at and before his death, an inhabitant of said City of Salt Lake, and as such, with his family, occupied and resided upon the north half (N. f) of lot four, and all of lot five, in block forty (40), as platted in plat ‘ A,’ Salt Lake City survey, and was the owner of said premises, and was at the time of his death in possession thereof, and held the same as a homestead. That on the 20th day of August, 1877, the plaintiif obtained the legal title in trust for the heirs of said deceased to the said described north half of lot four (4) in block forty (40), as platted in plat! A,’ Salt Lake City survey, and on the day of March, 1878, the plaintiff conveyed, by good and sufficient deed, the said described premises to the heirs at law of said Charles Roger, deceased, and they are seized in fee of said premises.”
Assuming that, under our peculiar statute, the administrator has the right to sue for the possession of the property of the intestate, yet this complaint shows that he is not suing *109for tbe possession of the property of the deceased, but for the possession of the property of the “ heirs at law.” It states the respondent out of court. It is not sufficient to say that the allegations referred to were unnecessary, and can be treated as surplusage. Surplusage is something immaterial and not affecting the merits of the case. The allegation that the title was conveyed to the heirs, and that they now are seized in fee of the premises goes to the very foundation of the action; and as we must deem it true, the contrary not appearing, on the respondent’s own showing he has no case.
For the reasons which I have thus stated, at some length on account of the importance of the rules involved, I am unable to unite with the majority of the court in affirming the judgment, but consider that it ought to be reversed.