Myers v. Washington
| Decision Date | 14 January 1963 |
| Citation | 27 Cal.Rptr. 778,211 Cal.App.2d 767 |
| Parties | Willie Edith MYERS, Plaintiff and Respondent, v. Derrel Danford WASHINGTON, Defendant and Appellant. Civ. 26224. |
| Court | California Court of Appeals Court of Appeals |
Ernest M. Miller and G. G. Baumen, Los Angeles, for defendant and appellant.
Ralph R. Sleeper and Robert M. Bushnell, Los Angeles, for plaintiff and respondent.
This is an appeal by the defendant from an order made October 25, 1961, denying his motion to set aside the default judgment that had been entered January 27, 1960. The ground of the motion was that the judgment, one entered by a court commissioner, granted relief not demanded in the complaint and therefore unauthorized because of the restrictions of section 580, Code of Civil Procedure. The motion was well grounded, we have concluded, and its denial is not to be justified because of the fact the defendant had brought two equity actions after the judgment was entered in which he sought without success to have it set aside.
The pertinent provision of section 580 is quite explicit: 'The relief granted to plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint * * *.' The reported decisions have not watered down this prohibition but have given it full effect. For example, we find it said in Burtnett v. King, 33 Cal.2d 805, 808, 205 P.2d 657, 659, 12 A.L.R.2d 333: 'It is a settled rule, and has been clearly stated in many recent authorities, that a default judgment by the court that exceeds the demand or gives relief where no demand is made therefor is void as in excess of the court's jurisdiction * * *.' (See also Craft v. Craft, 49 Cal.2d 189, 192-193, 316 P.2d 345, and Gudarcv v. Hadjieff, 38 Cal.2d 412, 240 P.2d 621.)
That the default judgment in our case runs afoul of the rule becomes clear as we compare the demands of the complaint with the terms of the judgment. The complaint alleged that the parties had formed a partnership to buy real estate and improve it by constructing residences; that they did buy and build but that defendant took possession of part of the partnership property and by threats of violence ousted plaintiff from certain improved real estate; that defendant has since then refused to carry on partnership business and has refused to permit plaintiff to do so; that defendant has further refused to account for partnership property held by him worth in excess of $8,000. In the prayer of the complaint plaintiff asked: That the partnership be declared to be dissolved and terminated; that a receiver be appointed and defendant restrained from disposing of partnership property; that an account be taken of all partnership dealings from the beginning; that the partnership property be sold, debts paid and surplus divided equally between the parties and that such other relief be granted as appeared meet and just.
The default judgment adjudged and decreed that the parties had entered into a joint enterprise or joint venture; that the joint venture has been dissolved before the filing of the complaint; that the agreement of joint venture was breached prior to such dissolution; that the plaintiff is entitled to judgment against defendant by reason of the breach and is awarded the sum of $4,000; and that in aid of any execution plaintiff is awarded a lien upon the property referred to in the complaint.
The gap between the demand of the complaint and the terms of the judgment is especially pronounced in this case because of its nature. The complaint proceeds upon the theory that the parties had been partners and seeks a dissolution and an accounting of the assets and liabilities to be followed by a division of whatever is left over. This is the proper relief to be sought in an action ending the life of a partnership. (Hooper v. Barranti, 81 Cal.App.2d 570, 578, 184 P.2d 688; Prince v. Harting, 177 Cal.App.2d 720, 732, 2 Cal.Rptr. 545.) The judgment proceeds, however, on the theory that the joint adventure had been terminated before the action was commenced due to defendant's breach and awarded plaintiff damages (not using the word), and instead of ordering the partnership property which had been identified in the complaint sold and divided after the debts of the partnership were paid, placed a lien on it for plaintiff's benefit. We see no room for doubt that the terms of the judgment did not match the demand of the complaint.
The motion to vacate the judgment was made more than six months after the default judgment was entered and so, of course, more than that time after the default was taken. But this does not shut the door on the fact that from the judgment roll itself it is apparent that the trial court awarded plaintiff relief which the code section says could not be given. We read in Craft v. Craft, supra, 49 Cal.2d 189, 192, 316 P.2d 345, 346, where the court was referring to the 'error' of awarding relief in excess of that demanded: 'The error was not urged by a timely appeal or motion for relief under section 473 of the Code of Civil Procedure, but defendant may nevertheless attack the...
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