McGary v. Pedrorena

Sharpstein, J.: The respondent brought an action to forclose a mortgage, and in addition to the mortgagor, Pedrorena, made certain other persons, who are alleged to have, or claim to have, some interest in the premises, which is subsequent and subject to the lien of plaintiff’s mortgage, defendants. Only one of the defendants, Pedrorena, the mortgagor, appeared in the action. He demurred and moved to strike out, and after his demurrer and motion to strike out were overruled, filed an answer to the complaint. Aftewards the plaintiff, by leave of the Court, filed an amended complaint. The defendant, Pedrorena, again demurred and moved to strike out. The demurrer and motion were overruled, and he filed an answer to said amended complaint. Judgment was entered in favor of the plaintiff and against all of the defendants. Two of the defendants, Pedrorena and McDonald, appeal from that judgment. The point upon which they mainly rely as constituting error for which the judgment should be reversed is that a copy of the amended complaint was not served upon McDonald. It has been held that an amendment to a complaint made “ of course * * * at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon by filing the same as amended,” must be served upon the adverse party, before his default can be regularly entered. (Code Civ. Proc. § 472; Elder v. Spinks, 53 Cal. 293.) But the complaint in this case was not amended “of cou/rse;” [94] nor before demurrer filed; nor before the trial of the issue of law thereon. Section 432 of the Code of Civil Procedure in the chapter relating to demurrers, prior to the amendent of March 9th, 1880, provided that: “If the complaint is amended, a copy of the amendments must be filed, or the Court may, in its discretion, require the complaint as amended, to be filed, and a copy of the amendments to be served upon the defendants to be affected thereby.” ■ In order to give force and effect to both of these sections of the code, we must hold that § 472 applies to amendments made before answer filed and before the trial of an issue of law upon a demurrer, and that § 432 applies to amendments made after an answer is filed, or after the trial of an issue of law upon a demurrer to a complaint. It is not claimed in this case that the Court required a copy of the amendments to be served upon any of the defendants. They were all regularly served by summons and a copy of the original complaint. Since the entry of the judgment in this case, in the Court below, § 432 has been amended, and the construction which we have given to it applies only to the language of the original section. As to the defendant who answered the amended complaint, service of a copy of it was undoubtedly waived, and it made no difference to him whether the other defendants were served or not. This question comes before us upon an exception of the defendant Pedrorena to the ruling of the Court, upon his objection “ to the trial of the cause at the time on the amended complaint, on the ground that said complaint had not been served on the other defendants,” one of whom was McDonald, who did not object to the trial proceeding, or except to the ruling of the Court upon the objection raised by Pedrorena. The objection should have come from one or both of the defendants who had not been served, if from anybody; and as they did not severally or collectively object or except, we can not reverse the judgment as to them or either of them upon an exception taken by a party who had no right to take it for them or either of them. If the decree, as to appellant McDonald, is erroneous by reason of his default not having been regularly entered, that error does not appear upon [95] the judgment roll; and we can not consider an exception to the ruling of the Court which affected him alone, unless he took the exception, in person or by attorney. The appellant Pedrorena, who took the exception, can not avail himself of it, for the obvious reason that it was taken to a ruling which in no way concerned him. No error appearing in the record, the judgment is affirmed. Myrick, J., and Morrison, C. J., concurred.