Слике страница
PDF
ePub

[5] ID.-APPEAL ON JUDGMENT-ROLL-SUFFICIENCY OF EVIDENCE-PRESUMPTION.-Where there is nothing legally before the appellate court that can be considered which will help in arriving at a conclusion as to whether or not the evidence offered was sufficient to support the judgment, that court is bound to presume that the evidence offered, whatever it was, was sufficient for such purpose. [6] DEFAULT-MOTION ΤΟ OPEN-CONFLICTING AFFIDAVITS-ORDERAPPEAL.-An order denying a motion to open a default and set aside an interlocutory judgment in an action for an accounting after dissolution of a partnership will not be disturbed on appeal where there is a sharp and decided conflict as to the questions presented by the affidavits of the respective parties.

[7] ID.-DISCRETION OF COURT-PRESUMPTION.-A motion under section 473 of the Code of Civil Procedure to open a default and vacate an interlocutory judgment is addressed to the discretion of the court, and should be liberally exercised to promote justice and prevent fraud; and the presumption is that, in the absence of satisfactory showing to the contrary, the lower court so exercised its discretion.

[8] ID. DISREGARD OF SUMMONS AND COMPLAINT SERVED DENIAL OF RELIEF.-Where the defendant was served with summons and complaint, but paid no attention thereto, the contention cannot successfully be maintained that his default was because of inadvertence, mistake, surprise, or excusable neglect.

[9] JUDGMENTS-FRAUD ON COURT-POWER TO SET ASIDE.-A court has inherent power to set aside a judgment for fraud upon the court, and the right to so act or grant relief is not derived from section 473 of the Code of Civil Procedure. However, a fraud that will render such relief available does not include a judgment irregularly obtained upon a fraudulent claim or by false testimony. A judg ment may be unjust, inequitable, and erroneous without being fraudulent or subject to be set aside by a court of equity. [10] ID. SALE OF PARTNERSHIP PROPERTY-DIRECTION AS TO GIVING OF NOTICE IMMATERIAL-In an action for an accounting after dissolution of a partnership, that portion of an interlocutory judgment directing the sheriff how and when to give the notice of sale of the partnership property is unnecessary and may be disregarded. [11] ID.

INSUFFICIENCY OF NOTICE-VALIDITY OF SALE-REMEDY OF PARTY AGGRIEVED.-Insufficiency of the notice of sale is not ground for setting aside an order confirming a sale made pursuant to a direction in a judgment or decree. The remedy of the party aggrieved under these circumstances is against the officer.

APPEAL from a judgment of the Superior Court of Imperial County. Franklin J. Cole, Judge. Affirmed.

The facts are stated in the opinion of the court.

Valentine & Newby, G. H. P. Shaw and John H. Foley for Appellant.

Irwin, Smith & Rosecrans and Davis & Rush for Respondent.

THOMAS, J.-This is an action for an accounting after dissolution of a partnership. Plaintiff's complaint herein was filed December 31, 1915, and, with the summons thereafter issued, was served on defendant on January 11, 1916. Default of defendant was entered on January 24, 1916. On March 15, 1916, an interlocutory judgment was entered. Appellant contends that the judgment was based upon a statement theretofore filed in said cause by respondent. This contention is opposed by respondent, who argues that, there being no findings of fact, and none of the evidence adduced upon the hearing of the matter being preserved in either a bill of exceptions or a statement of the case, only matters shown by the judgment-roll, consisting in this case only of the complaint and judgment, can be considered. On March 28, 1916, an amendment to said interlocutory judg ment was made by the court, without any notice to appellant. Appellant appeals from this judgment and the amendment thereto. This will be referred to here as the first appeal.

On April 26, 1916, appellant duly served and filed his motion to open said default and set aside said interlocutory judgment, together with affidavits in support thereof, and his answer to the complaint. On April 28, 1916, and just prior to the hearing of said motion, respondent served on appellant counter-affidavits. On April 29, 1916, this motion. was denied. From the order denying this motion appellant has appealed. This is the second appeal.

May 2, 1916, respondent served upon appellant a notice. of motion to confirm the sale of the property of the partnership made by the sheriff. Objections to the confirmation of said sale were filed by appellant, and, after hearing evidence both for and against such confirmation, the court, on May 6, 1916, overruled said objections and entered an order. confirming the sale. Appellant thereupon applied to the court to fix the amount of the bond to stay execution pending

appeal, under sections 943 and 945 of the Code of Civil Procedure. Said application was granted, the court fixing the bond at the sum of ten thousand dollars, and such appeal was then taken and the bond given according to law. shall refer to this as the third appeal.

We

June 24, 1916, respondent served upon appellant's attorneys a notice of motion, supported by affidavits, to enter final judgment in said cause. Appellant did not appear at this hearing, and, on June 30, 1916, the court granted this motion and entered final judgment accordingly. This is the fourth appeal herein.

By proper stipulation the records in all four appeals have been, for the convenience of court and counsel, included in one transcript. The appeals will be considered in the order presented.

In reference to the first appeal, it may enlighten the matter some if it is understood that the complaint alleges that respondent had "paid into said copartnership business, both as capital and for the conduct and maintenance of said business, the sum of $31,309.42, and has received from and on account of said copartnership the sum of $6,554.83 in money," leaving a net investment, as we gather from the said allegation, of $24,854.60. The statement of the account submitted to the court by respondent, and upon which the interlocutory judgment was rendered, shows the amount invested by respondent to be the sum of $43,151.22, and the amount withdrawn the same as alleged in the complaint, to wit, $6,554.83, leaving his net investment at $36,596.39-or the sum of $11,741.79 more in favor of respondent, apparently, than the allegations of the complaint authorize. Respondent contends that there is no warrant in the record for such conclusion, as already hereinbefore set forth.

[1] We are confronted at the outset with the query as to whether the interlocutory judgment, so called, entered herein is a "final judgment." If it is not, then no appeal from it is legally permissible, and the special orders, entered by the court subsequently to the entry thereof, and before the entry of the so-called judgment, are not appealable orders. Under the authority of Zappettini v. Buckles, 167 Cal. 27, [138 Pac. 696], we hold the judgment now under consideration to be a final judgment; that, consequently, an appeal lies therefrom, and, hence, that each of the special orders

following said judgment was also appealable. (Code Civ. Proc., sec. 963.)

The transcript discloses, as a part of appellant's bill of exceptions, the following: "That before interlocutory judgment was entered, the plaintiff filed a statement with the judge of said court, at his request, and represented that it was a correct statement of the copartnership account between plaintiff and defendant, which said statement was and is in words and figures as follows, to wit." Then follows a copy of the statement. An examination of the interlocutory judgment discloses the fact that it is in exact accord with the said "statement." How can one escape the conclusion, it is asked, that the judgment was based thereon?

It is urged by respondent that on an appeal from a default judgment only matters shown by the judgment-roll— consisting in this case only of the complaint and judgment— can be considered. If no other point were urged by appellant than the one now under consideration, it might be conceded that respondent's position would be invulnerable. (Tomlinson v. Ayres, 117 Cal. 568, [49 Pac. 717]; Nevada Bank v. Dresbach, 63 Cal. 324.) But other points are urged, and presently we shall see the force of appellant's position here. For our present purpose we call attention to the fact that, limited to the judgment-roll, we are confronted with the query: "Was the interlocutory judgment warranted under the allegations of the complaint?" If not, is it error apparent on the face of the judgment-roll? [2] It is true, as was said in Ohleyer v. Bunce, 65 Cal. 544, [4 Pac. 549], that an appellate court will never indulge in presumptions to defeat a judgment. What have we in this case, outside of an assumption based upon no evidence to which our attention has been called, to support appellant's claim that the judgment here was based upon the "statement" referred to? [3] "The relief to be awarded to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issues" (Code Civ. Proc., sec. 580), and "a default admits the material allegations of the complaint, and no more." (Ellis v. Rademacher, 125 Cal. 556, [58 Pac. 178]; Balfour etc. Inv. Co. v. Sawday, 133 Cal. 228, [65 Pac. 400].)

It is urged by appellant that the complaint contains no allegation which justifies the following-appearing as a portion of the interlocutory judgment: "That the sheriff of said county of Imperial, state of California, is hereby appointed to take possession of all said property belonging to said copartnership," etc. We think this was not in excess of the relief demanded. In other words, the language just quoted simply specifies one of the steps in a series to be taken by the said sheriff in carrying out the terms of the judgment and decree. It is true that in a "matter of purely special or exceptional recovery, the defendant is entitled to look solely to the prayer in determining whether he will defend against the relief sought in the action," and that "if such special relief is not therein specifically demanded, it is to be deemed waived." (Brooks v. Forington, 117 Cal. 219, [48 Pac. 1073].) But the present is, we think, not such a case.

The difficulty with which we are here confronted is not as just indicated, but is centered around the query as to whether on the consideration of this appeal from the interlocutory judgment we can take cognizance of the statement referred to. If we can do so legally, then the contention of appellant may be sustained. Concededly, so far as this first appeal is concerned, it is one on the judgment-roll alone. There are no findings. We have wholly failed to find anything "on the face of the record," or contained within the judgmentroll, that justifies the assertion that the judgment was based on the said statement. [4] This court cannot take notice of alleged facts which rest solely upon the mere assertion of counsel in their brief, even although where, as in this case, such counsel has the confidence of the court. (Horton v. City of Los Angeles, 119 Cal. 602, [51 Pac. 956]; Dore v. Southern Pacific Co., 163 Cal. 182, [124 Pac. 817].) The record is entirely silent as to what evidence was introduced or considered at this hearing. This so-called "statement" is not authenticated in any bill of exceptions as such evidence. [5] This court, for the present, is mightily concerned, in passing upon the question, with what transpired at the trial; what evidence was there and then introduced, and what portion thereof the court accepted as true; but there is absolutely nothing legally before us that can be considered which will help in arriving at a conclusion as to whether or not the evidence offered was sufficient or insufficient to support the

« ПретходнаНастави »