34 Cal. 76 | Cal. | 1867
This is a suit in the nature of a bill of review, to correct a former judgment between these parties in the same Court. The plaintiffs in the Fourth District Court filed their complaint to foreclose a vendor’s lien, setting forth a written contract for the sale of lands to the defendant, and the promise by defendant to pay the purchase money in gold coin of the United States. The written contract was set forth at length in the complaint. The whole of the purchase money had been paid, except the last installment, which was payable upon the happening of a contingency, i. e. the perfecting of the title by the decree of a competent Court to that effect against certain persons. The complaint alleged that the title had been so perfected, and that the last installment was, therefore, due. The cause was tried by the Court, and findings were for the plaintiffs, and judgment ordered-accordingly to enforce the vendor’s lien. The defendant appealed to the Supreme Court, and there the judgment ivas affirmed. (31 Cal. 347.) Upon the going down of the remittitur, the defendant tendered the amount in legal tender notes. Plaintiffs then discovered that the judgment did not
Thereupon the plaintiffs commenced this suit to have the judgment reformed, and the judgment made to conform to the rights of the plaintiffs; alleging that, by error and inadvertence of their attorney, the complaint did not pray for the judgment to which they were entitled, and that the judgment was erroneous upon jts face in not giving to them the relief to which, upon the facts stated in the bill, they were entitled.
The defendant demurred to the bill on the ground that it did not state facts sufficient to constitute a cause of action; and the Court gave judgment for the defendant upon the demurrer. From this judgment the plaintiffs appeal.
The plaintiffs in the former suit were clearly entitled to a judgment for gold coin upon the case made by the pleadings, if the facts proved corresponded with the allegations of the complaint. The complaint averred a contract payable in gold coin, and there was an answer filed, so that the Court was authorized to grant any relief “ consistent with the case made by the complaint, and embraced within the issues.” (Practice Act, Sec. 147.) One of two hypotheses must, therefore, be true : either the plaintiffs failed to prove the case alleged, or the Court erred in not granting the full measure of relief demanded by the case presented. The answer in the former case is not in the present record, but the Court finds the issues in favor of the plaintiffs, and we may assume the latter hypothesis to be the true one. The real ground of complaint, then, is, that the judgment is erroneous upon the face of the record. The mode prescribed by our Practice Act for correcting such errors is by appeal. The error would readily have been corrected by an appeal from the judgment upon the judgment roll alone. This is a simple and speedy mode of correcting the judgment, and it is the remedy provided. Besides, there was, in fact, an appeal in the case, and the judgment was affirmed, and even under the old chancery system, “ where a decree has been
The demurrer, in our judgment, was properly sustained.
Judgment affirmed.
Mr. Justice Sanderson and Mr. Justice Shatter expressed no opinion.
