Lattimer v. Ryan
20 Cal. 628
Cal.
1862
Check Treatment
Norton, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

The summons issued and served hi this action stated that upon default, judgment would be taken for three thousand dollars and interest. After the defendants had put in answers to the complaint, the plaintiff, on notice to the defendants’ attorneys, took certain depositions to be read on the trial. When the action came on for trial, more than six months after the answers were filed, the plaintiff, without having given any notice, moved the Court to strike out the answers because they were not verified, upon which the defendant Frank Duff asked leave then to verify his answer, which leave was refused, and the plaintiff’s motion to strike out was granted, and a judgment entered as upon default in favor of the plaintiff for something over forty thousand dollars, being apparently the amount of a promissory note, set out in the complaint, for three thousand dollars, with interest at five per cent, a month, compounded monthly, for a number of years. At the next term of the District Court, on defendant’s motion, this judgment was set aside, the defendant Frank Duff allowed to verify his answer, and the action tried ex parte, the plaintiff refusing to appear at the trial, and a judgment entered in favor of the defendant.

Both parties have appealed: the defendant Frank Duff from the first judgment, which was against him; and the plaintiff from the second judgment, which was against him, and also from the order setting aside the first judgment.

According to the repeated judgments of this Court, jurisdiction to set aside the first judgment had been lost to the District Court, upon the adjournment of the term at which it was rendered; and hence the order to that effect made at the subsequent term, and the judgment in favor of the defendant, were erroneous. But the refusal of the Court at the previous term to allow the defendant Frank Duff *633to verify his answer must be considered such an abuse of discretion under the circumstances as to amount to an error, under the decision of the case of Arrington v. Tupper, (10 Cal. 464) from which this case cannot be distinguished on this point. The record also shows error in a judgment being taken by default for a sum vastly more than that specified in the summons, for which amount only it could regularly be taken, pursuant to section one hundred and fifty of the Practice Act. The summons specified three thousand dollars, with interest, which means the legal interest of ten per cent, a year. After the answer was stricken out, the case stood as though no answer had been filed. We do not think the plaintiff can be heard, under the peculiar circumstances of this case, to say that the proceeding was substantially the same as if he had only claimed under section fifty-three that the execution of the note was admitted, and had taken a verdict or finding as upon an issue. The District Court did not decide that the answer of Frank Duff did not contain a sufficient denial that he executed the note; but set aside the whole answer because not verified. Possibly, if the Court had taken notice that the complaint was not verified, and hence that the answer was not required to be verified merely in order to stand as a pleading, it would have allowed a verification for the purpose of making a sufficient denial of the execution of the note, or perhaps might have held that the implied admission that the note was genuine and executed, as it purported to be, by the firm of Ryan, Duff & Co., did not preclude Frank Duff from denying that he was a member of the firm and bound by that note. The plaintiff having obtained the benefit of proceeding as upon a default, instead of proceeding to a trial, must stand by the results of that proceeding, especially in this case, where he sought to shut out an investigation of the merits by placing himself upon his strictest rights.

Both judgments being erroneous, must b.e both reversed, and the cause remanded, neither party to have costs of this appeal as against the other.