Alexander v. McDow

Henshaw, J. There are two appeals. The first is from an order refusing to recall and quash the execution and to vacate the judgment; the second from the judgment rendered against defendant after his default. The grounds of the motion are that the judgment is void upon its face in showing no service of summons and complaint upon defendant, and that it is void for that the complaint states no cause of action. 1. Upon the summons the sheriff made the following return: “I hereby certify that I received the within summons on the 14th day of-, a. d. 189-, and personally served the same on the 16th day of October, a. d. 1893, on L. D. McDow, defendant therein named, by delivering to each of said defendant personally, in the-town of Susanville, county of Lassen, a copy of said summons, and upon defendant, L. D. McDown, personallyy [28] in the town of Susanville, county of Lassen, a copy of said summons attached to a copy of the complaint in the action therein named.” The irregularity which it is contended renders the return a nullity is the addition of the terminal letter n to the name of the defendant, L. D. McDow. The court, in its order holding the return sufficient, said: “ There is no question but that the summons was regularly served. There is but one defendant, viz., L. D. McDow, and the return shows that ‘ the defendant ’ was served with copy of complaint, although, by what is evidently a clerical error, a slip of the pen, the letter ‘ n’ is affixed to the last letter of the name ‘ McDow.’ ” "We think the ruling and the reasons upon which it is based are both sound. 2. The complaint is in form as follows: “ Plaintiff complains of defendant, and for cause of action alleges: That on the 28th day of November, 1888, the defendant made and delivered to Levy & Alexander his promissory note in the words and figures as follows, to wit: “ * $848.14. Susanville, Cal., Nov. 28, ’88. “ ‘ On or before the 29th day of November, 1888, without grace, for value received, I, or either of us, promise to pay Levy & Alexander, or order, eight hundred and forty-eight XW dollars, with interest thereon from November 28, 1888, at one per' cent per month, interest to be added to principal and compounded every six months, and ten per cent of total amount due for attorneys’ fees incurred in the collection of this note, when collection is made by attorney or other officer. Demand, notice of nonpayment, and protest of this note is hereby waived by each and every signer and indorser. Principal and interest both payable in United States gold coin, and the same collectible in any part of the United States. “ ‘ P. 0. Address-, L. D. McDow. “ ‘ Indorsed: Pay to Jules Alexander. “ Levy & Alexander. [29] “ That no part of the principal or interest of said note has ever been paid, and the same and the whole thereof is now due and owing from defendant to plaintiff. "Wherefore, plaintiff demands judgment against the defendant for the sum of $848.14, and interest thereon from the 28th day of November, 1888, according to the terms of said note, and for ten per cent on the amount which may be found due for principal and interest for attorneys' fees incurred in the collection of this note, and for costs of suit.” The test of the sufficiency of this complaint will be found in the answer to the question: Is it or is it not obnoxious to a general demurrer? “ When this question arises,” to quote the language of Mr. Justice Temple, “ courts have always discriminated between insufficient facts and an insufficient statement of facts,'and where the necessary facts are shown by the complaint to exist, although inaccurately or ambiguously stated, or appearing by "necessary implication, the judgment will be sustained.” (Amestoy v. Electric R. T. Co., 95 Cal. 311; Garner v. Marshall, 9 Cal. 268; Hentsch v. Porter, 10 Cal. 555; People v. Rains, 23 Cal. 128.) Thus, while a judgment will not relieve from the entire absence of a necessary averment, it will cure defects in all such averments as may by fair and reasonable intendment be found to have been pleaded, although defectively. The gravamen of the charge against this complaint is that it fails to make the necessary averment of assignment to plaintiff. The note, by containing a provision for the payment of attorneys’ fees, was stripped of that essential characteristic of a negotiable instrument by which it could pass by simple indorsement, with all the attaching liabilities, to the indorser. Assignment of it therefore became necessary to convey title. But such an instrument may be assigned by indorsement as fully as may a negotiable instrument. (Civ. Code, sec. 1459.) The assignment is pleaded in the complaint with Caesarian brevity by the single word indorsed, followed [30] by the quotation. This, however, is aided by the subsequent statement that the principal and interest are due from defendant to plaintiff. By fair, if not by necessary, implication, we learn from this that Levy & Alexander assigned the instrument by indorsement and delivered it to plaintiff, and that plaintiff then became and now is the owner and holder of it. So construed, the complaint will support the judgment, although it must be added that the weight is quite all it is capable of sustaining. 3. We think, also, that there is sufficient in the complaint to support the allowance of attorneys’ fees. The note, which is set forth in full, provides for them, and the prayer of the complaint asks for them, and the action is brought by an attorney at law. The sum asked as attorneys’ fees is susceptible of exact determination by simple mathematical calculation. It is fairly deducible from the complaint, therefore, that plaintiff asks an allowance of a specific sum as being reasonable and due for attorneys’ fees under the contract. It is true that this demand is in the nature of special damages, the allowance of which might have been contested by defendant. (Prescott v. Grady, 91 Cal. 518.) But his default admits the truth of the matters pleaded, and must, therefore, be construed to admit that the amount claimed is both reasonable and due. Thus no evidence was required to be taken for the purpose of fixing that amount. 4. The judgment attacked was entered by the clerk under section 585, subdivision 1, of the Code of Civil Procedure, which provides: “That in an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the clerk, .... the clerk .... must enter the default of the defendant, and immediately thereafter enter judgment.” The action of the clerk in estimating and adding the amount of the attorney’s fee to the judgment under the above circumstances was as purely ministerial as was his calculation of interest upon the principal sum of [31] the note in accordance with the terms and the averments of the complaint. The clerk was acting within the scope of his authority in entering judgment. 5. It is finally contended that the judgment should be reversed because the clerk entered it for an amount in excess of that specified in the summons. Against this contention it is urged that the court below modified the judgment before the appeal was perfected. Nothing in the record, however, gives evidence of such modification, and the judgment must here be considered to be the one set forth in the transcript. The entry of judgment for an amount in excess of that called for by the summons was indisputably error. (Code Civ. Proc., sec. 585, subd. 1.) The order appealed from is affirmed, and the superior court of Lassen county is directed to order its clerk to modify the judgment by entering therein, in lieu of the amount named, the amount specified in the summons, and it is further ordered that appellant have his costs upon appeal. McFarland, J., and Temple, J., concurred.