Poledori v. Newman

The Court. This action was brought under the provisions of section 1202 of the Civil Code to correct a defective certificate of the acknowledgment of a deed of conveyance made by a married woman. Judgment was rendered in favor of the plaintiffs, and the present appeal is taken directly from the judgment upon the judgment roll alone, without any bill of exceptions. The ground of the appeal is that in the findings and judgment the court went beyond the issues in the case, and corrected the certificate in particulars not alleged in the complaint. • The complaint sets forth the conveyance and its proper acknowledgment to the notary, and alleges that the notary, in affixing his certificate, omitted [377] to certify therein “ that, upon examination without the hearing of her husband, he had made her acquainted with the contents of the said deed, but used for his acknowledgment a blank form appropriate to cases certifying the acknowledgment of a deed made by an unmarried woman.” Issue was taken by the defendants upon the several averments in the complaint, and the court found that the deed was properly executed and acknowledged, but that the notary in affixing his certificate “ omitted to certify therein that upon examination without the hearing of her husband the said notary had made her acquainted with the contents of the said deed, and that thereupon she acknowledged to him that she executed the same, and that she did not wish to retract said execution.” The particular point urged on this appeal is that, as the complaint did not aver that the grantor in the deed acknowledged to the notary “ that she did not wish to retract her execution of the deed,” the court was not authorized to correct the certificate in that respect. Section 580 of the Code of Civil Procedure authorizes a court, when an answer to the complaint has been filed, to grant to the plaintiff “any relief consistent with the case made by the complaint and embraced within the issue.” The “ case ” made by the complaint herein, as well as the issue between the parties, is the right of the plaintiffs to have the defective certificate of acknowledgment corrected, and the relief granted by the court was “consistent” therewith. The failure to allege all the particulars in which the defect consisted might have been a ground for refusing to admit evidence of defects other than those alleged, but did not prevent the parties from consenting to have such defects considered by the court. Upon a direct appeal from the judgment upon the judgment roll alone, it will be assumed in support of the judgment that all objections to evidence in support of the findings were waived. If objection to the introduction of any evidence had been made upon the ground that the defect to which it [378] related was not alleged in the complaint, the court would have permitted the plaintiffs to amend their complaint. Parties will not be permitted to lie by and keep silent when evidence is offered, and after the court has rendered its judgment, object thereto upon the ground that the evidence sustaining it was inadmissible under the issues presented by the pleadings. The judgment is affirmed. Hearing in Bank denied. Beatty, C. J., being disqualified, did not participate in the foregoing decision.