than is demanded in the prayer of the complaint and specified in the summons ;67 and allegations appearing in replication only will not support judgment for affirmative relief.68 If the prayer for judgment asks for interest to accrue after the complaint is filed, and neither the prayer nor summons mentions the rate of interest, the clerk should not render judgment for a rate greater than the legal rate of interest.69 Interest is to be allowed on cash advances as a matter of law.70 In an action in Massachusetts on a note made payable in New York, interest at the legal rate of the former state only will be allowed.71 § 1423. Waiver of default.-An acceptance by plaintiff's attorney of service of a demurrer, filed by a defendant after his default has been entered, is a waiver of the default.72 Plaintiff is not precluded from asking to have defendant's default set aside by reason of the fact that it was entered on plaintiff's motion.73 Grounds for vacating the judgment found by the court to be suffi cient are also sufficient to authorize vacation of the default and a time fixed for defendant to plead.74 § 1424. When to be entered. If no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, in an action arising upon contract for the recovery of money or damages only, the clerk upon application of the plaintiff shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, including the costs, against the defendant. In other actions, the clerk shall enter the default of the defendant; and thereafter the plaintiff may apply at the first or any subsequent term of the court for the 67 Cal. Code Civ. Proc,. § 580; Lamping v. Hyatt, 27 Cal. 102; Gage v. Rogers, 20 Cal. 91; Lattimer v. Ryan, 20 Cal. 628. 68 Manuel v. Turner, 36 Mont. 512, 93 Pac. 808. 69 Lamping v. Hyatt, 27 Cal. 102; Gautier v. English, 29 Cal. 165; Cal. Civ. Code, § 1917. 70 Field v. Burnam, 3 Bush, 518. As to interest generally, as a part of the relief granted, see Skillman v. Lachman, 23 Cal. 199, 83 Am. Dec. 96; Estate of Isaacs, 30 Cal. 105; Bibend v. London etc. Ins. Co., 30 Cal. 78; Dunne v. Mastick, 50 Cal. 247; Brady v. Wilcoxson, 44 Cal. 245; Goldsmith v. Sawyer, 46 Cal. 213; Lander v. Castro, 43 Cal. 498. See, also, Cal. Civ. Code, §§ 1916, 1917, 3287. 71 Ayer v. Tilden, 15 Gray, 178, 77 Am. Dec. 355. 72 Hestres V. Clements, 21 Cal. 425. 73 Thompson v. Alford, 135 Cal. 52, 66 Pac. 983. 74 Id. relief demanded in the complaint. Where the service of the summons was by publication, the plaintiff upon the expiration of the time designated in the order of publication may, upon proof of the publication and that no answer has been filed, apply for judgment; but proof of the demand, and of any payments thereon, in such case shall be required.75 The provision that the clerk must enter the judgment immediately after entering default is merely directory, and does not render void a judgment subsequently entered upon such default; nor can the defendant against whom the judgment is entered invoke such failure for the purpose of annulling a judgment to which he has no other defense.76 § 1425. Setting aside judgment, grounds of.-A party against whom an unjust judgment has been obtained, through accident, mistake, or fraud, may, after the adjournment of the term at which judgment was rendered, and where no want of diligence is imputable to him in seeking relief, maintain an equitable action to set aside the judgment.77 The mere existence of a good defense alone will not warrant the setting aside of such a judgment.78 In cases of fraud in obtaining the judgment, the party aggrieved must proceed by a bill to impeach the original decree for fraud, etc.79 If a judgment is erroneous, the defendant has his remedy. by appeal; if void upon its face, he has, in addition, his remedy by motion, at any time, in the court by which the judgment was rendered.80 § 1426. California procedure. The California Code of Civil Procedure now provides as follows: A judgment or decree of a superior court, when based upon findings of fact made by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of such 75 Cal. Code Civ. Proc., § 585. 76 Edwards v. Hellings, 103 Cal. 204, 37 Pac. 218. 77 Bibend v. Kreutz, 20 Cal. 109. 78 Brum v. Ivins, 154 Cal. 17, 96 Cal. 876; Beck v. Lavin, 15 Idaho, 363, 369, 97 Pac. 1028. 79 Robb v. Robb, 6 Cal. 21; City of Guthrie v. McKennon, 19 Okla. 306, 91 Pac. 851. Insufficient grounds: See Markley v. Rand, 12 Cal. 275; 80 Chipman v. Bowman, 14 Cal. 157; Logan v. Hillegass, 16 Cal. 200; Bell v. Thompson, 19 Cal. 706; Sanchez v. Carriaga, 31 Cal. 170; cited in Murdock v. De Vries, 37 Cal. 527. See Norton v. Atchison etc. R. R. Co., 97 Cal. 388, 33 Am. St. Rep. 198. 30 Pac. 585, 32 Pac. 452; De La Mon party and entitling him to a different judgment: 1. Incorrect or erroneous conclusions of law not consistent with or not supported by the findings of fact; and in such case, when the judgment is set aside, the conclusions of law shall be corrected and amended; 2. A judgment or decree not consistent with or not supported by the special verdict.82 The party intending to make the motion mentioned in the above section must, within ten days after notice of the rendition of judgment or decree, serve upon the adverse party and file with the clerk of the court a notice of his intention, designating the grounds upon which and the time at which the motion will be made, and specifying the particulars in which the conclusions of law are not consistent with the findings of facts, or in which the judgment or decree is not consistent with the special verdict. The time designated for the making of the motion must not be more than sixty days from the time of service of the motion.83 § 1427. Form of motion to set aside default.-A motion to set aside a judgment by default against a surety, reciting that defendant's neglect to plead was because of negotiations looking toward a settlement, and to enable defendant to locate his principal and secure his presence, is insufficient without a statement of the facts.84 § 1428. Jurisdiction.-All courts having chancery jurisdiction have power to set aside a judgment improperly obtained.85 A party is not confined to his remedy by statute, but may resort to a court of equity for relief against a judgment obtained by fraud or surprise.86 The assistance of equity to set aside a judgment cannot be invoked in a distinct action, so long as the remedy by motion in the original case exists.87 1429. Motion, when to be made.-A judgment void upon its face may be set aside at any time.88 At common law, after the tanya v. De La Montanya, 112 Cal. 101, 53 Am. St. Rep. 165, 44 Pac. 345, 32 L. R. A. 82. 82 Cal. Code Civ. Proc., § 663. 83 Cal. Code Civ. Proc., § 663a. 84 Barra v. People, 18 Colo. App. 16, 69 Pac. 1074. 85 People v. Lafarge, 3 Cal. 130. 86 Carpentier v. Hart, 5 Cal. 406. See Dunlap v. Steere, 92 Cal. 344, 27 Am. St. Rep. 143, 28 Pac. 563, 16 L. R. A. 361. 87 Bibend v. Kreutz, 20 Cal. 109. 88 People v. Davis, 143 Cal. 673, 77 Pac. 651. adjournment of the term, the court loses all control over cases decided, unless its jurisdiction is saved by some motion or proceeding at the time; but in most states there are special statutes fixing the time within which a motion to set aside a judgment must be made. In California, where the party has failed to apply for relief during the term, relief may be granted in vacation within a reasonable time, not exceeding six months after the close of the term.89 A default judgment void on its face is properly set aside on a motion made while the action is pending, and by a party thereto.90 But mere error of the court cannot be taken advantage of on motion to vacate a default judgment where the motion was made nearly five years after judgment.91 The invalidity not being apparent on the face of the judgment-roll, and no application having been made within the year, the sole remedy is a new action in equity, and a purported order attempting to open the judgment is void upon its face, upon either direct or collateral attack.92 Application to open a default made after the adjournment of the term at which the judgment by default was rendered cannot be entertained, unless the moving party makes a showing of reason why he failed to make the application during the term.93 The court may at any time set aside a judgment by default entered by the clerk when it appears upon the face of the judgment-roll that the clerk had no power to enter it.94 A judgment by default rendered upon a constructive service of summons by publication, without any affidavit or order for the publication, is void, and a motion by the defendant to vacate such a judgment is in time, although made more than ten years after its entry.95 If the summons has not been personally served on the defendant, he may be allowed, on such terms as may be just, to answer to the merits of the action at any time within one year after the rendition of the judgment.96 During the term at which a judgment was rendered, a district 89 Cal. Code Civ. Proc., § 473. As to construction of this provision, see Wolff v. Canadian Pacific Ry. Co., 89 Cal. 332, 26 Pac. 825; Wharton v. Harlan, 68 Cal. 422, 9 Pac. 727; Kittle v. Bellegarde, 86 Cal. 556, 25 Pac. 55; Howard v. McChesney, 103 Cal. 536, 37 Pac. 523. 90 Crossman v. Vivienda Water Co., 136 Cal. 571, 69 Pac. 220. 91 People v. Wrin, 143 Cal. 11, 76 Pac. 646 and 1127. 92 People v. Davis, 143 Cal. 673, 77 Pac. 651. 93 Mahoney v. Mahoney, 51 Cal. 118. 94 Wharton v. Harlan, 68 Cal. 422, 9 Pac. 727. 95 People v. Pearson, 76 Cal. 400, 18 Pac. 424. 96 Cal Code Civ. Proc., § 473. court may perhaps, even without a statement or affidavits, upon motion of a party injured, amend or set aside an erroneous judgment; but to continue full and complete jurisdiction in the court over the case beyond the term, some order must be made or proceedings taken in accordance with statute.97 In New York, two years is allowed for opening up a judgment, and no more.98 But not a limitation where summons was not served.99 § 1430. Parties not concluded by the record. In a direct proceeding in the same action to set aside a judgment, under section sixty-eight of the Practice Act, the parties are not concluded by the record in any respect; on the contrary, they are allowed to show the true facts of the case by any competent evidence; aliter, if the question had arisen collaterally.100 A petition to open a judgment may be made by a party or his assignee in interest.101 Grounds for vacating a judgment are also sufficient to authorize a vacation of the default and a setting of a time to make answer, and the party who asks for the default may also ask to have it set aside.102 The interest of stockholders, who were made parties, and who succeeded to the property before entry of judgment, is sufficient to sustain their motion to set aside the judgment as void and unauthorized. 103 An application under section 473 of the California Code of Civil Procedure must be by proceeding in the cause wherein the default was taken, and not by separate suit for relief against the judgment.104 1431. Answer to the merits.-The better practice is to prepare and exhibit to the court the defendant's answer at the hearing of a motion to set aside a default.105 A copy of the answer should be served with the notice of motion. Where the merits are shown by affidavit, counter-affidavits on that question will not be heard.106 When the record does not show that a default 97 State v. First Nat. Bank 4 Nev. 358. See Horton v. New Pass Co., 21 Nev. 184, 27 Pac. 376, 1018. 98 Hendricks v. Carpenter, 2 Robt. 625. 99 Weeks v. Merritt, 5 Robt. 610. 100 McKinley v. Tuttle, 34 Cal. 235. 101 Brown v. Massey, 13 Okla. 670, 76 Pac. 226. 102 Thompson v. Alford, 135 Cal. 52, 66 Pac. 983. 103 Crossman V. Vivienda Water Co., 136 Cal. 571, 69 Pac. 220. 104 Estate of Griffith, 84 Cal. 107, 23 Pac. 528, 24 Pac. 381. 105 Bailey v. Taaffe, 29 Cal. 422. 106 Gracier v. Weir, 45 Cal. 54; Douglass v. Todd, 96 Cal. 655, 31 Am. St. Rep. 247, 31 Pac. 623. |