| Cal. | Jul 1, 1867
I. As to the right of appeal, there is no distinction between judgments by default and judgments after issue joined and a trial. The former is as much a final judgment as the latter, and the statute gives a right to appeal from all final judgments without distinction. From this it follows that all errors disclosed by the record can be reviewed and corrected on an appeal from the former class of judgments as well as the latter. This is too plain for argument, and we do not hesitate to declare that all cases which are to the contrary are unsupported by any provision of the law by which the jurisdiction and practice of this Court is regulated. To hold otherwise would be to create a distinction where the law has not, which we have no power to do. There are some cases, no doubt, which support the theory of the learned counsel for the respondents, but we have no respect for them. Some of them go upon the ground that a defaulting defendant has six months in which to seek relief from the judgment in the Court below, and therefore he has no occasion to appeal. That is to say, that he cannot appeal for six months, but he may after that time is passed. Such language is unwarranted by anything found in the Practice Act. On the contrary, the language of that Act is that an appeal may be taken from a final judgment at any time within one year after its rendition, and the Courts have no right or power to make it speak a different language, or to say that one class of final judgments and not another was intended. Besides, it is not universally true that a defaulting defendant has a remedy in the lower Court under the provisions of the sixty-eighth section. But if it were, the result contended for would not follow. Alternative remedies are common, and where they are provided a party has his
Éor is there any force in the idea that a distinction is to he made between cases which were once denominated cases at law and cases which were once called cases in equity, and that on appeal from judgments by default this Court will review errors in the latter cases and not in the former. There is matter in some of the cases cited by respondents which gives color to such an idea; but we say of them, as we have said of the others, there is no foundation for the distinction.
Éor is there any force in the suggestion that this Court will exercise original instead of appellate jurisdiction if it entertains the points made on this appeal. It is true that as a matter of fact the Court below has never passed upon the sufficiency of the complaint, yet it is equally true that as a matter of law it has. Though entered by the Clerk without the direction of the Judge, it is as much the judgment of the Court as if it had been announced from the bench, and the defendants are as much entitled to the opinion of this Couz’t upon the sufficiency of the complaint as they would have been had they appeared and demurred. Questiozzs of juz-isdiction azid of the sufficiency of the complaint, upon the point whether the facts stated constituted a cause of action, are never waived in any case, azid may be made for the first time in this Court.
The idea which finds countenance in some of the cases cited by the respondents, that at all events this Court will deal more liberally with judgments by default than with others, and will pass over errors for which it would reverse a judgment rezidered upozz a tz-ial, we here take occasion to say, is without aziy foundation. It is true that we will not reverse a judgzizezzt by default for mere technical defects in the complaint which fall short of an entire want of something which is material to the plaintiff’s right to recover. So the cases referred to declare, and in this respect they are sound. The error in those cases was in giving countenance
II. The general objection made to the complaint is that it does not state facts sufficient to constitute a cause of action. The particular objections are: 1st. That it does not allege that the defendants were copartners in business at the time the note was made, and that the firm made it; 2d. That it does not aver a promise to pay; and 3d. That it does not aver or show that the note has upon it a United States revenue stamp.
While the complaint is obnoxious to criticism in respect to the first two objections, and would have undoubtedly been more artistic and logical had it been drawn in the manner for which counsel for appellants contend, yet we think it would be sticking in the bark to hold that it is radically defective. As already intimated, this Court will not reverse a judgment for defects in the complaint which fall short of an entire absence of material and indispensable matter. It will not reverse if it can be gathered from the complaint as a whole that the plaintiff has a cause of action upon which he was entitled to the judgment which has been rendered, however defectively his cause of action may be stated. A distinction must be made between a case where the complaint affords no information at all as to a material point and where it affords information, but not by the usual or most approved methods. How upon the facts of partnership and promise this complaint is not entirely destitute of information. If it does not state those facts altogether in words of its own, it does so partially in its own language and partially in the language of the defendants, for the complaint contains a copy of the note, in which the defendants speak for themselves. While the fact of partnership is not formally averred in the body of the complaint, yet the names of both defend
The point that the complaint fails to show a cause of action, because the copy of the note therein contained is without a copy of any internal revenue stamp, is not tenable. In Trull v. Moulton, 12 Allen, 396, and Hitchcock v. Sawyer, 39 Vt. 412" court="Vt." date_filed="1867-02-15" href="https://app.midpage.ai/document/hitchcock-v-sawyer-6578279?utm_source=webapp" opinion_id="6578279">39 Vt. 412, a copy of the note declared on was annexed to the declaration. 3STo copy, however, of a revenue stamp was given. The defendant demurred, but the Court held that the stamp was no part of the note, and that therefore a copy of it was not necessary.
In order to defeat a recovery on an unstamped note it must appear not only that the note is unstamped, but that the stamp has been fraudulently omitted, which of course cannot be done on demurrer to the complaint, but must be done by answer. (Beebe v. Hutton, 47 Barb. 187" court="N.Y. Sup. Ct." date_filed="1866-05-07" href="https://app.midpage.ai/document/beebe-v-hutton-5461279?utm_source=webapp" opinion_id="5461279">47 Barb. 187; Desmon v. Norris, 10 Allen, 250. See, also, Bradley v. Bardsley, 14 M. & W., 878; Edw. on Stamp Act, 213; Huddleston v. Briscoc, 11 Ves. 596; 1 Chit. Pl. 289; Lane v. Mullins, 1 Gale & D. 712.)
Judgment affirmed.
Mr. Justice Bhodes expressed no opinion.