Bailey v. Sloan

4 P. 349, 65 Cal. 387, 1884 Cal. LEXIS 567

Opinion

Sharpstein, J.

The demurrer was properly overruled. The demand according to the ad damnum clause of the complaint, exclusive of interest, exceeds $300. The ad damnum clause in the complaint is the test of jurisdiction, (Maxfield v. Johnson, 30 Cal. 545; Solomon v. Reese, 34 Cal. 28; Sanborn v. Superior Court of Contra Costa County, 60 Cal. 425; Dashiell v. Slingerland, 60 Cal. 653.)

Ho answer was filed, and the time within which the defendant was granted leave to answer having expired, the cleric was authorized to enter his default, and a judgment for the amount specified in the summons. (Code Civ. Proc. § 385.)

As the appeal is from the judgment alone, we have nothing before us except the judgment roll in which notice of the overruling of his demurrer would not appear, even if such notice had been given. If none was given, and the defendant wished to avail himself of the omission, he should have moved in the court below to set aside the default and judgment on that ground, and if his motion had been denied, appealed from the order denying such motion. In that way alone could he have got the question which he now seeks to raise before this court.

Judgment affirmed.

Thornton, J., and Myrick, J., concurred.

Hearing in Bank denied.