§602


X>art  objected  to  and  the  judgment  in  no  way  depends
thereon.*    The  same  is  true  as  to  an  error  in  overruling
^L  demurrer  for  misjoinder  of  causes  of  action  where  the
trial  was  had  upon  one  cause  only,  and  the  judgment  is
oonfined  thereto,*  or  the  court  finds  against  all  but  one
<muse  of  action.*    When  a  cross-complaint  presents  the
same  issues  as  are  raised  by  the  original  pleadings,  rul-
ings upon  a  demurrer  thereto  are  immaterial,''  inasmuch
^8  on  the  filing  of. an  amended  pleading,  the  original  is
superseded.®    Any  error  in  the  ruling  on  a  demurrer  to
a  complaint    becomes    immaterial    if    the    complaint    is
amended  and  the  issues  made  on  the  amended  pleading
are  tried  and  judgment  rendered  thereon.    This  rule  is
equally  true  where  the  complaint  is  amended  to  conform
to  the  proofs.*    When,  however,  it  appears  from  the  rec-
ord that  a  judgment  is  based  entirely  upon  a  finding  as
to  a  cause  of  action  or  defense,  an  error  in  overruling  a
general  demurrer  thereto  is  prejudicial.**

Failure  to  rule  on  demurrer. — ^A  failure  to  rule  on  a
demurrer  is  without  prejudice  where  the  demurrer  pos-
sesses no  merit.**


4.  Brittan  t.  Oakland  Bank  of
Sayings,  11&  Gal.  1,  44  Pac.  339;
Campbell  v.  Bear  Biver  ft  A.  W.
A  Min.  Co.,  36  Cal.  679.
6.  Hams  v.  Smith,  132  Cal.  316,
64  Pac.  409;  Clark  v.  Yoeum,  116
Cal.  515,  48  Pae.  498  (when  the
court  limited  the  evidence  to  one
cause  of  action  and  the  case  was
tried  upon  that  alone);  Gillaspie  v.
Hagans,  90  Cal.  90,  27  Pac.  34
{where  the  plaintiff  abandoned  one
cause  of  action  and  introduced  no
evidence  thereunder).
6.  Savings  Bank  of  San  Diego
County  y.  Fisher,  5  Cal.  Unrep.  115,
41  Pac.  490.
