82 P. 82 | Cal. Ct. App. | 1905
Appeal from a judgment in an action to foreclose a street-paving lien. A general demurrer to the complaint was overruled with leave to answer. The court *282 found that subsequently the parties filed the following stipulation: —
"It is stipulated and agreed that the defendants in the above-entitled actions need not file an answer in said actions, but that the said actions shall abide the result of the action of the Pacific Paving Company against J. L. Mowbray, 5163, and whatever judgment may be finally entered in said actions shall also be entered in each of the above-entitled cases, whether the same be in favor of the plaintiff or defendants; and if in favor of the plaintiff, then in each case according to the prayer of the complaint.
"Dated April 23rd, 1897.
"JAS. A. LOUTTIT, "Attorney for Plaintiff. "F. H. GOULD, JAMES H. J. E. BUDD, "Attorneys for Defendants."
That judgment was finally entered in favor of plaintiff in the action referred to in said stipulation, and on these findings the court entered judgment for plaintiff "for the sum of $107.02, being the amount of principal and interest due on assessment against the lot in the complaint set forth, together with the further sum of fifteen dollars attorneys' fees of plaintiff herein and $14.80 costs in this action."
Appellant makes two objections to the judgment: 1. That it is not supported either by the complaint or by the stipulation; and, 2. That the court has failed to find all the material facts.
1. The insufficiency of the alleged facts is grounded in part upon the decision in Buckman v. Hatch,
But appellant suggests that if the judgment is based upon the complaint it is invalid because the amount is greater than prayed for. The prayer demanded $51.1898, with interest thereon at ten per cent per annum from September 13, 1892, to rendition of judgment; also for fifteen dollars attorneys' fees and taxable costs. The court gave judgment as hereinabove quoted. Computation shows that by including the attorneys' fees of fifteen dollars with the interest on the principal sum we have the amount of the judgment, $107.02, and eleven cents more. If the judgment will admit of this construction it is slightly less than prayed for. The costs are usually taxed separately because not ascertainable when the judgment is entered. We must give the judgment such construction as will support it, if this may be done within reason and accepted rules of construction. (Davis v. Lezinsky,
2. The complaint alleged that defendant Finkbohner has or claims some interest in the lot involved, upon which there is no finding. Appellant contends that failure to find as to Finkbohner's interest is fatal to the judgment. The actionas to him was dismissed, as appears from the recitals of the judgment. What his interest in the lot was, if any, does not appear; the complaint alleged that defendant Vizelich was the sole owner, and it is the owner who is a necessary party. (Robinson v. Merrill,
The judgment is affirmed.
Mclaughlin, J., and Buckles, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on August 31, 1905, and a petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on September 2, 1905.