27 Cal. 99 | Cal. | 1864
As suggested by respondents’ counsel, there is no statement in the record that can be considered. But, on the other hand, none is required, for the errors appearing in the judgment roll, brief as it is, are manifest and manifold. There is no congruity between any two of the documents constituting the judgment roll.
The summons, in stating the relief demanded, goes beyond the prayer of the complaint; the officer's return shows a service on parties not mentioned in the complaint or summons, either by real or fictitious names; the judgment is against all the parties served, and, as to the relief granted, goes even beyond the relief stated in the summons to be demanded, and exceeds that which the contract sued on would authorize, even had it been embraced within the terms of the prayer of the complaint or the summons.
The judgment is by default, and the Court was therefore not authorized to grant any greater relief than is demanded in the prayer of the complaint and specified in the summons. (Practice Act, 147; Raun v. Reynolds, 11 Cal. 19; Page v. Pogers, 20 Cal. 91, 628.)
The judgment is “to be enforced and collected in gold coin.” In this respect also the judgment exceeds the relief prayed for. The prayer is simply for so much money without specifying the kind of money. Nor does the summons say that judgment will be taken in gold coin.
In this respect also, the relief exceeds that authorized by the contract, for there is no promise in the note to pay in gold coin.
The record furnishes the data for correcting the judgment, and if the respondents desire it, the judgment may be modified so as to be entered for the sum of five thousand three
It is further ordered that the appellants recover their costs of appeal.