Sidebilder
PDF
ePub

on the ground that the judgment was taken | amendment was made, there being at the against him through his excusable neglect, time of such judgment a good and sufficient their case on appeal from the order of the complaint on file, with a copy of which he trial court denying relief is not a strong one. had been duly served, and which constitutThis is clearly apparent when the record is ed the basis of the judgment. So far as examined. Indeed the showing was of such the superior court was concerned, the action, a nature that, notwithstanding the established at the time of the amendment, had been tendency in favor of a trial on the merits, finally disposed of as to the appellant by the it might well have been contended that the judgment entered upon the original comgranting of the motion would have been an plaint, the allegations of which were admitabuse of discretion on the part of the trial ted by his failure to appear. The judgment court. But it is sufficient to say that as to having thus been given, appellant could not the alleged fact upon which alone appellant be "affected" by any subsequent amendment claimed to have relied in failing to himself (Code Civ. Proc. § 432), nor was he longappear and defend there was a substantial er an "adverse party" within the meaning conflict of evidence, and the decision of the of that term as used in sections 465 and trial court thereon is conclusive here. We 472 of the Code of Civil Procedure. As to may add that the preponderance of evidence him, the action had been disposed of in the on this question of fact was clearly against superior court upon the issues tendered by appellant. the original complaint. The whole reason for the rule relied on by the appellant is wanting in such a case, and there is nothing in the law warranting the conclusion that there is any such rule where judgment is given against the defaulting defendant before any amendment is made.

As we have seen, an amended complaint was filed subsequent to the entry of the default, which was never served upon appellant. It is earnestly urged that the effect of this was to open the default and make the judgment entered irregular, one inadvertently rendered, and one given without jurisdiction. It is settled by a long line of decisions that where, after the default of a defendant has been entered, a complaint is amended in matter of substance as distinguished from mere matter of form, the amendment opens the default, and unless the amended pleading be served on the defaulting defendant, no judgment can properly be entered on the default. See Thompson v. Johnson, 60 Cal. 292; Reinhart v. Lugo, 86 Cal. 399, 24 Pac. 1089, 21 Am. St. Rep. 52; Witter v. Bachman, 117 Cal. 319, 49 Pac. 202; Woodward v. Brown, 119 Cal. 304, 51 Pac. 2, 542, 63 Am. St. Rep. 108; Linott v. Rowland, 119 Cal. 452, 453, 51 Pac. 687; Riverside County v. Stockman, 124 Cal. 224, 56 Pac. 1027; Tappendorff v. Moranda, 134 Cal. 421, 66 Pac. 491. The reason for this rule is plain. A defendant is entitled to opportunity to be heard upon the allegations of the complaint on which judgment is sought against him. His default on the original complaint is limited in its effect to that complaint; and, if by amendment a matter of substance is added, he should be given the opportunity to contest the same before any judgment is given against him on account thereof. The law, therefore, requires that the amended pleading shall be served on all the adverse parties, including defaulting defendants. But, assuming the amendment here to have been a matter of substance, this rule has no application to the case at bar. All of the cases cited are cases where the judgment was given against the defaulting defendant subsequent to the presentation of the amended pleading, and was necessarily based solely on such amended pleading which had taken the place of the original pleading, while here judgment had been given and entered upon the default against the defaulting defendant before any

It is further contended that the trial court had no power to give judgment against the appellant alone, "in view of the finding that both defendants were jointly guilty of the negligence alleged to have been the cause of plaintiff's injury." We have already stated the allegation of the complaint as to the act of the defendants that caused the injury. The court simply found "that all the singular the averments of the complaint are true," except the averment as to damages. Section 579 of the Code of Civil Procedure provides: "In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper." Section 585 of the Code of Civil Procedure provides that if, in an action of this character, the defendant fails to answer, the clerk must enter the default of the defendant, "and thereafter the plaintiff may apply to the court for the relief demanded in the complaint," and the court is authorized to hear the evidence that may be offered to sustain the allegations of the complaint.

It is not disputed that two or more persons who jointly engage in the commission of a tort are jointly and severally liable, as the injured party may elect. The injured party may sue all or any of them jointly, or each separately, or, having secured a joint judgment against all, enforce such judgment by execution against one only; the only limitation being that he can have but one satisfaction for the injury that he has received. Fowden v. Pacific Coast, etc., Co., 149 Cal. 157, 86 Pac. 178. See, also, Tompkins v. Clay St. R. R. Co., 66 Cal. 166, 4 Pac. 1165. In this case plaintiff might have brought separate actions against Wilson and the other defendant; his complaint contain

ing the precise allegations as to a joint act | tically not different from that in Dawson v. of negligence that are made in the com- Schloss, supra, where the action was against plaint here. If he had so done, such com- Schloss and Hinkle. On the first trial judgplaint in each action, although alleging a ment was recovered against both Schloss joint act of negligence on the part of the and Hinkle for $5,000. A new trial was defendant and the other party named, would granted as to Schloss alone. The judgment have stated a complete and separate indi- against Hinkle for $5,000 remained in force, vidual liability against the party sued on but wholly unsatisfied. A new trial resulted account of the single act complained of. in a judgment against Schloss for $3,000. Fowden v. Pacific Coast, etc., Co., supra. Schloss appealed from the judgment against Nor can it be disputed that, under the rules him, contending that so long as the original of law in force in this state, in an action of judgment existed against Hinkle, no judgthe character of the one before us, judg- ment should have been rendered against ment may be given against one defendant him on the new trial; that "while separate and in favor of another defendant. Section suits may be brought against each of joint 578, Code Civ. Proc.; Fowden v. Pacific tort-feasors, yet it is well settled that, if the Coast, etc., Co., supra. In view of these defendants are sued jointly, as here, there well-settled views, by virtue of which a sep- can be but one verdict and judgment." arate action could have been maintained This court said: "Such is not the prevailagainst Wilson upon the very allegations ing rule in the United States." The judgcontained in this complaint, it is difficult to ment against Schloss was affirmed. conceive why a "several judgment" against one of two or more defendants charged with having jointly participated in a single act of negligence producing injury is not "proper"; and, if it would be "proper," it is in terms authorized by section 579 of the Code of Civil Procedure. Wherein can appellant complain of such action being taken in this case? By his failure to appear he had admitted the truth of the allegations of the complaint "which stated a complete and separate individual liability” on his part on account of the single act complained of just as fully as if he had been the sole defendant. So far as his liability was concerned,

it could make no difference whether his co

It is not true under our rules that differ

ent judgments against different wrongdoers for the same wrongful act may not be for different amounts, the amount in each case being dependent upon the conclusion of the particular judge or jury as to the amount of damage accruing to the injured party from the wrongful act. Dawson v. Schloss, supra, shows that the same result may follow where there is one action only against all the wrongdoers. It is true that in an action of this character the damages cannot be severed and apportioned by the trial court or jury among the different defendants. McCool v. Mahoney, 54 Cal. 491, holds defendant was subsequently held liable or no more than this. In that case the jury by defendant was subsequently held liable or their verdict against two defendants appornot. He had no legal right to insist that tioned the total damage of $3,500 found, others who had participated in the confessed negligent act, whether defendants or not, awarding $3,000 against one defendant and should pay any portion of the damage. He $500 against the other, and judgment was was liable for all such damage upon the al- entered accordingly. This judgment was legations of the complaint that must be reversed, the court saying that, as the actaken as admitted by him. Learned counsel tion was for a wrong in which both defendfor Wilson say that if this practice is to be ants joined, the damages could not be sevsustained, the logical result will be that the ered. But this rule has no application to court, after entering this judgment against the question we are discussing. There will the appellant, can proceed to the trial of be no severance of damages even if plainthe case as against the remaining defend- tiff is allowed to proceed and obtain judgant, entering up a new and separate judgment against the remaining defendant for ment, and perhaps a different judgment a different amount. The amount for which from the one entered against the appellant. he finally obtains judgment against the othThis may be so, but we do not see that it er defendant would be the total amount of affects the question before us. The well- damage that, in the opinion of the trial settled rule is that no bar arises as to any court or jury, the plaintiff had suffered from of the wrongdoers until the injured party the wrongful act of both defendants. has received satisfaction, or what in law is case of Curry v. Roundtree, 51 Cal. 184, citdeemed its equivalent, and a judgmented by appellant, was an action against three against one wrongdoer which remains whol- alleged copartners jointly on a partnership ly unsatisfied is not such satisfaction. See demand, and is not in point. See Harrison Dawson v. Schloss, 93 Cal. 199, 29 Pac. 31; v. McCormick, 69 Cal. 620, 11 Pac. 456. Grundel v. Union Iron Works, 127 Cal. 438, No other point is made for reversal. 59 Pac. 826, 47 L. R. A. 467, 78 Am. St. Rep. The order is affirmed. 75.

The

BAIRD v. JUSTICE'S COURT OF RIVER-
SIDE TP. et al. (Civ. 691.)
(Court of Appeal, Second District, California.
Oct. 2, 1909.)

1. ATTORNEY AND CLIENT (§ 36*)-SUSPENSION
OF ATTORNEY-JURISDICTION OF JUSTICE'S
COURT.

A justice's court is not a court which, under Code Civ. Proc. § 287, has power to remove or suspend an attorney from practice.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 49; Dec. Dig. § 36.*]

2. ATTORNEY AND CLIENT (§ 38*)-SUSPENSION OF ATTORNEY-GROUNDS.

The practicing of law by one occupying a judicial position is not one of the causes for removal or suspension of an attorney."

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 51; Dec. Dig. § 38.**] 3. ATTORNEY AND CLIENT (§ 45*)-SUSPENSION OF ATTORNEY-GROUNDS.

If an attorney engages in the practice of his profession while holding a judicial position, in violation of Code Civ. Proc. § 171, his offense is that of a judicial officer, and not that of attorney.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 63; Dec. Dig. § 45.*] 4. ATTORNEY AND CLIENT (§ 57*)-SUSPENSION PROCEEDINGS-REVIEW-PARTIES.

Under Code Civ. Proc. § 1069, requiring the petition for certiorari to be made by the person beneficially interested, defendant, in an action in a justice's court, whose answer is oral, requiring no signature of an attorney, is not a proper party to bring certiorari to review an order of the justice disbarring his attorney from practicing in such court.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 81; Dec. Dig. § 57.*] 5. CERTIORARI (§ 5*)-EXISTENCE OF REMEDY BY APPEAL.

Certiorari will not lie where the matter complained of can be reviewed on appeal.

[Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 5; Dec. Dig. § 5.*1

6. APPEAL AND ERROR (§ 1074*)-HARMLESS ERROR-PREJUDICIAL CHARACTER OF JUDG

MENT.

Under Code Civ. Proc. § 475, providing that no judgment shall be reversed for error unless substantial injury appears, an erroneous judgment, vacating an order which was void and ineffective on its face, will not be reversed.

[Ed. Note. For other cases, see Appeal and Error. Cent. Dig. §§ 4248, 4249; Dec. Dig. § 1074.*]

Appeal from Superior Court, Riverside County; Benjamin F. Bledsoe, Judge.

George A. French be disbarred from practicing law in the justice court of Riverside township .so long as he shall remain police judge of said city, and his name is hereby stricken from the files in this case." The application for the writ was made by the defendant to the action in which the order was made; the attorney, French, not being a party thereto. It is conceded, however, that French was at all times mentioned in the proceedings a practicing attorney, having been duly admitted to practice in all the courts of the state, and had been retained by

petitioner and had appeared in said action in petitioner's behalf.

Counsel for the respective parties have discussed at length in very interesting and instructive briefs the effect which should be given section 171, Code Civ. Proc., which in terms prohibits a justice of the peace from practicing law before another justice of the peace of the same county; respondent's contention being: That the section is not applicable to a police judge appointed in a city, even though his jurisdiction within such city is concurrent with that of the justice of the peace, while appellant contends that under the charter of the city of Riverside a police judge is a justice of the peace when performing the functions of that office; that the character of a court is determined, not by its name, but by the nature of its jurisdiction and functions; that in the enactment of section 171 the Legislature intended to prohibit those performing the functions of a justice of the peace from engaging in such practice of law. In view of the conclusions hereinafter expressed, we do not consider it necessary to discuss or determine the above-mentioned controversy.

Section 287, Code Civ. Proc., designates the courts having power to remove or suspend attorneys, and the causes for which such removal or suspension may be made. A justice of the peace is not a court which, under that section, has power to remove or 'suspend an attorney, and the practicing of law by one occupying a judicial position is not one of the causes for removal or suspension. If, as a matter of fact, French violated the law by thus engaging in the practice of his profession before a justice of the peace, when at the same time he was occupying a judicial position, his offense is that of a judicial officer and not that of an attorney (In re Silkman, 88 App. Div. 102, 84 N. Y. Supp. 1027); and, if he subjected himself to any penalty by reason of misconduct, the punishment therefor is provided by section 758 et seq., Pen. Code. As said in ALLEN, P. J. This is a proceeding where- the case last cited: Courts which have inin the co. t below gave judgment annulling herent power to discipline lawyers are conthe following order made and entered by ap- | fined in its exercise to such acts exhibiting pellant justice in an action pending in said turpitude, or loss of that good character which justice's court, wherein petitioner was de- was essential to admission in the first infendant: "It is ordered that Police Judge stance, and, when misconduct is made by

Petition for certiorari by John Baird, against the Justice's Court of Riverside Township and Thomas B. Stephenson, Justice of the Peace. From a judgment for plaintiff, defendant appeals. Affirmed.

Lafayette Gill, for appellant. Miguel Estudillo and George A. French, for respondent.

thus vacated has no efficacy and is a nullity.
void upon its face, and an order of the court
vacating an order of such character, even if
erroneous, could not prejudice the rights of
any one. Section 475, Code Civ. Proc., char-
ges an appellate court in every stage of the
action to disregard any error which, in the
opinion of the court, does not affect the sub-
stantial rights of the parties, and that no
judgment shall be reversed by reason of any
error unless it shall appear from the record
that such error was prejudicial, and that the
party complaining or appealing sustained
and suffered substantial injury. Prejudicial
error not being apparent, an order will be
entered affirming the judgment.
Judgment affirmed.

We concur.: SHAW, J.; TAGGART, J.

KNOTT v. PATNOTT. (Civ. 683.) (Court of Appeal, Second District, California. Sept. 30, 1909.)

APPEAL AND ERROR (§ 987*)-FINDINGS-CON

CLUSIVENESS.

tions only involving the weight and effect of The court will not on appeal consider questestimony.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3893-3896; Dec.. Dig. § 987.*]

statute ground for removal from office for transgression as a judicial officer, the same, in the absence of expressions to the contrary, must be deemed exclusive. Conceding want of jurisdiction on the part of the justice to make the. order complained of, the question as to the power of petitioner to invoke the writ of certiorari for its annulment then presents itself. Section 1069, Code Civ. Proc., with reference to the writ of certiorari, provides: The application must be made upon a verified petition of the party beneficially interested. Is the petitioner herein shown to be such party? That part of the order complained of, purporting to strike the name of French from the file, could in no wise prejudice petitioner. The answer, being the only instrument which could be affected by the order, was an oral one requiring no signature by an attorney, and, eliminating his name therefrom, it still remains as a complete answer to the complaint, and the cause was as much at issue as if French's name appeared as attorney. Aside from the fact that the order of a justice of the peace disbarring an attorney is so obviously without authority, so foreign to any jurisdiction or power reposed in a justice of the peace, its void character is made apparent upon its face, and for that reason could scarcely be said to work injury or affect the rights of any one. Petitioner does not show how such order could affect his substantial rights, or any judgment which might be rendered in the action. That petitioner has the right to be represented by counsel does not imply that he has the right to be represented by any particular person. The attempt at disbarring French could only affect petitioner in that, while the justice of the peace persisted in his effort to prevent French from practicing law before him, he could not have the benefit of French's services. It may be that French does not care to interest himself ALLEN, P. J. The plaintiff in his comfurther in petitioner's defense, or, perchance, plaint set out the purchase by him of a mothe plaintiff in the action may discontinue tor car from defendant at an agreed price the same before trial, and the services of an of $750; that plaintiff was induced to make attorney will no longer be required. In eiIn ei- such purchase and pay said sum by reason ther of which events, the order could not of the representations of the defendant that remotely affect petitioner. Upon the other the car was in every respect in first-class hand, if this order in any wise affects a condition, suitable for use, and had been judgment thereafter rendered against peti- tested by defendant and found satisfactory tioner in the action, he possesses the right and in good condition; that plaintiff was ununder section 974, Code Civ. Proc., to appeal skilled in the mechanism of such machines upon questions of law, and by section 980 and notified defendant that he would rely the superior court, upon such appeal, may upon his representations; that these reprereview all orders affecting the judgment ap- sentations of defendant were false, and pealed from. Certiorari will not lie when known by him to be false when made, and the matter complained of can be corrected the plaintiff promptly, upon discovering the on appeal. Stoddard v. Superior Court, 108 defects which rendered the car unsatisfacCal. 303, 41 Pac. 278; Southern Cal. Ry. Co. tory, notified defendant of his rescission of v. Superior Court, 127 Cal. 422, 59 Pac. 789. the contract and demanded the return of the While it appears from what is here said price paid. Defendant by answer denied all that, in the opinion of this court, the su- of the allegations made by plaintiff in reperior court erred in its judgment vacating spect of representations, and, on the conthe order, yet it is apparent that the order trary, averred that the machine was in good

Appeal from Superior Court, Kings County; John G. Covert, Judge.

nott. From a judgment for defendant and Action by B. F. Knott against A. F. Patfrom an order denying a new trial, plaintiff appeals. Affirmed.

H. B. McClure and J. L. C. Irwin, for appellant. M. L. Short, John F. Pryor, and D. L. Phillips, for respondent.

Evidence held to show that defendants

went on premises to manage the same for a survivor of a firm leasing the same from plaintiff, and that there was no sale, transfer, or assignment of the lease on which the suit was based, so that the relation of landlord and tenant between the parties to the suit was not shown.

condition when sold and was worth the sum | 4. LANDLORD AND TENANT (§ 802*)--ASSIGNreceived; denied that the purchase was bas- MENT OF LEASE-SUFFICIENCY OF EVIDENCE. ed upon any belief in any representations made by defendant, but, on the contrary, that plaintiff, through a skilled agent, who minutely examined the car before purchase, purchased the same upon the faith of such report and examination of the agent. The court finds against plaintiff as to all the material allegations in his complaint, and further that, in substance, the allegations of the answer are true. Judgment went for defendant, from which judgment and an order denying a new trial plaintiff appeals.

The specifications of error all refer to the insufficiency of the evidence to support the findings. The record discloses evidence which, if accepted by the trial court, amply supports its findings. The rule that an appellate court will not usurp the functions of the trial court and upon appeal consider questions only involving the weight and effect which should be given the testimony has been declared so often that it would seem that a time should arrive when its force and effect should be appreciated. The duty of this court in considering such specifications of error is discharged when, upon examination, it finds that the findings of the trial court have some support from competent evidence.

The judgment and order are affirmed.
We concur: SHAW, J.; TAGGART, J.

RUSSELL v. BANKS et al. (Court of Appeal, Third District, California. Oct. 4, 1909.)

1. APPEAL AND ERROR (§ 373*)-NECESSITY OF FILING APPEAL BOND.

As a new or alternative method of taking appeals to the Supreme and District Courts of Appeal, without filing appeal bonds, is provided by St. 1907, p. 750, c. 408, an appeal, evidently taken under the former exclusive method, is sufficient under the alternative method recently adopted, though no bond was filed.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 231; Dec. Dig. § 802.*]

5. CONTRACTS ($ 187*)-THIRD PERSONS EMPLOYED TO MANAGE PREMISES-LIABILITY TO LESSOR.

The employment of third persons by a lessee to manage leased premises is obviously a contract between the parties for their own benefit, and for that of no other person, and so cannot be enforced by lessor against such persons under Civ. Code, § 1559, as a contract made expressly for his benefit.

Cent. Dig. §§ 802, 803; Dec. Dig. § 187.*]
[Ed. Note.-For other cases, see Contracts,
6. LANDLORD AND TENANT (§ 64*) - THIRD

PERSONS EMPLOYED TO MANAGE PREMISES
-LIABILITY TO LESSOR.

Payment of rent by persons employed to manage premises for a lessee did not create an estoppel against them in favor of lessor suing them on the lease; that being only what they agreed to do under their arrangement with lessee irrespective of the lease.

Tenant, Cent. Dig. §§ 171, 177, 178; Dec. Dig.

[Ed. Note.-For other cases, see Landlord and

§ 64.*]

Appeal from Superior Court, Mendocino County; M. S. Sayre, Judge.

Action by C. E. Russell against James A. Banks and another. From a judgment for defendants, plaintiff appeals. Affirmed.

J. W. Preston, for appellant. Robert Duncan, for respondents.

HART, J. The complaint alleges that the defendants are indebted to the plaintiff in the sum of $873 under the terms of a certain lease executed by said plaintiff to one N. J. Waymire, and prays for judgment for that sum. The cause was tried by the court without a jury, and judgment against the plaintiff and in favor of the defendants for costs was rendered and caused to be entered by the court. The plaintiff appeals from said

[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. § 2001; Dec. Dig. § 373.*]
2. APPEAL AND ERROR (§ 340*)-TIME OF TAK-judgment on a bill of exceptions.

ING APPEAL-REVIEW OF EVIDENCE TO SUP-
PORT FINDINGS CONSIDERATION OF BILL
OF EXCEPTIONS.

An appeal being taken within 60 days after entry of judgment, the bill of exceptions may be considered on the point that the evidence does not support the findings on which the judgment rests.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1888; Dec. Dig. § 340.**] 3. EVIDENCE (§ 98*)- BURDEN OF PROOF FAILURE TO SUSTAIN.

It is the duty of plaintiff having the burden of proof to establish his case by satisfactory proof, and, until he has done so, defendants need not reply or cross-examine witnesses whose testimony has little tendency to sustain the

complaint.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 122; Dec. Dig. § 98.*]

Respondents first object to the consideration of this appeal upon the alleged ground that jurisdiction to do so has not been conferred because of the failure of the appellant to file an undertaking on appeal, citing sections 940 and 953 of the Code of Civil Procedure and the case of Pacific Mutual Life Ins. Co. v. Edgar, 132 Cal. 197, 64 Pac. 260; but, since the decision in the case cited, the Legislature of 1907 (St. 1907, p. 750, c. 408) has provided a new method of taking appeals to the Supreme and District Courts of Appeal, and thereunder it is not necessary, as under the old method, in order to perfect such appeals, to file an undertaking guaranteeing the payment by the appellant

« ForrigeFortsett »