108 P. 874 | Cal. Ct. App. | 1910
Action to recover from defendants on their joint and several promissory note.
The appeal is from a judgment rendered against both defendants, and is prosecuted upon the judgment-roll alone.
On behalf of appellant Tungate, it is contended that the judgment as to him should be reversed, for the reason that it does not appear that any summons was ever issued or served upon him; nor does the judgment-roll disclose any answer, demurrer or other appearance filed on his part. The judgment, however, recites that defendant Tungate appeared by Watkins Blodget, as attorneys for himself and his co-defendant Caldwell. Section
If the judgment against Tungate was in fact rendered without jurisdiction of the person, he is, of course, entitled to relief therefrom, but not in this proceeding nor upon the record before us.
The court having obtained jurisdiction of the person of defendant by reason of his appearance, no formal entry of his default was necessary to enable it to render judgment against him. (Drake v. Duvenick,
On behalf of appellant Caldwell, it is claimed that as the judgment is against both himself and Tungate, it must, if reversed as to the latter, fail also as to him. The foregoing views render it unnecessary to discuss his rights from such standpoint.
The note sued upon was for the sum of $1,000, bearing interest at the rate of ten per cent per annum from date, payable semi-annually, and dated February 1, 1907. The complaint alleges: "That said promissory note has not been paid, nor any part thereof, or the interest thereon, save and excepting the sum of fifty (50) dollars; that there is now due, owing and unpaid to the said plaintiff on said promissory note the whole of the principal sum of one thousand (1,000) dollars, U.S. gold coin, together with interest thereon at the rate of ten per cent per annum from April 1, 1908." The prayer of the complaint follows this allegation, praying for judgment for $1,000 and interest at ten per cent per annum from April 1, 1908. No issue was raised by either defendant as to the amount alleged to be due. In no event could recovery against Tungate exceed the sum prayed for in the complaint. (Code Civ. Proc., sec. 580.) The allegation of the complaint as to the amount unpaid on the note is somewhat ambiguous. Construing it most strongly against the pleader, the sum alleged to be unpaid upon the note is $1,000, with interest from April 1, 1908, for which plaintiff prays judgment. Since defendant by his answer raised no issue as to the sum claimed to be due and unpaid, we think the rule applicable to one not answering is likewise applicable *33 to one admitting such allegation. The court, however, in rendering judgment, computed interest from August 1, 1907, instead of from April 1, 1908. To the extent of the interest accruing prior to April 1, 1908, amounting to $73.55, the judgment is erroneous.
It is, therefore, ordered that upon the going down of the remittitur the trial court modify the judgment by deducting therefrom, as of the date of its rendition, the sum of $73.55, and as thus modified the judgment is affirmed. It is further ordered that appellants recover costs of this appeal.
Allen, P. J., and Taggart, J., concurred.