S. F. No. 938 | Cal. | Dec 16, 1898
The plaintiff sued on a certain judgment against the city of Plaeerville, averring himself to be the owner of an undivided one-half thereof, and joining as defendants several persons alleged to claim rights in the same adverse to him. The court below held that he had no interest in the judgment, and its decision was affirmed on a former appeal in this case, entitled McDonald v. Cutter, 120 Cal. 44, 52 Pac. 120. The only point made here is that plaintiff should have recovered against the city of Plaeerville, which suffered default. Plaintiff, however, demanded relief in addition to a recovery of money due on the judgment, viz., a determination that the defendant Cutter has no interest in the same; and this on grounds such that a failure to sustain his case in that particular necessarily defeated it as to all the defendants. He was therefore beyond the provision of the statute allowing judgment by default in actions arising on contract for the recovery of money or damages only: Code Civ. Proc., sec. 585. This appeal seems to us frivolous. The judgment is affirmed.