Barney v. Vigoreaux

28 P. 678, 92 Cal. 631, 1892 Cal. LEXIS 770

• Court: California Supreme Court
• Decided: January 5, 1892
• Docket: No. 13641
• Status: Published

Opinion

Sharpstein, J.

The record shows that the plaintiff brought his action against the defendant upon a promissory note, of which a copy is contained in the complaint. Copies of several receipts of payments, which it is alleged were indorsed upon said promissory note, are set out in the complaint, and plaintiff demands judgment for $340, balance of principal, with interest, etc.

There is no allegation that no part of the sum for which said note was given, except the sums indorsed upon it, has been paid.

The defendant did not appear in the action, although there was proof of the service of summons upon him, and his default was regularly .entered and judgment thereon entered against him, and within ten days thereafter he gave notice of a motion to vacate said judgment. The motion was heard and denied, and from the order denying that motion, and the judgment, the defendant appeals.

The omission to allege in the complaint that some part of the said note had not been paid constituted a fatal defect, for which the judgment must be reversed. (Frisch v. Caler, 21 Cal. 71; Davanay v. Eggenhoff, 43 Cal. 395; Scroufe v. Clay, 71 Cal. 123.)

It is unnecessary to consider thé questions raised and discussed by counsel upon the motion to vacate the judgment, as the reversal of it accomplishes all that was sought by that motion.

Judgment and order reversed.

McFarland; J., and De Haven, J., concurred.