34 Cal. 79 | Cal. | 1867
This appeal is taken from the judgment and from an order denying a motion made by the defendant to set the judgment aside under the sixty-eighth section of the Practice Act.
First—The motion to set aside the judgment and for leave to answer, was properly overruled; for the reason, if for no other, that there was no affidavit of merits. Such affidavit was indispensable. (Bailey v. Taaffe, 29 Cal. 422.) Should
Second—There is, however, error in the judgment in that the relief granted exceeds the relief demanded in the complaint. (Practice Act, Sec. 147; Gautier v. English, 29 Cal. 166.) The allowances for taxes and interest thereon, and for interest on the counsel fees, must be struck from the decree.
Subject to these modifications, which the Court below is directed to make, the decree is affirmed.