Barton v. Maal

55 P.2d 529, 12 Cal. App. 2d 353, 1936 Cal. App. LEXIS 1040

Opinion

CRAIL, P. J.

The defendant appeals from a judgment against him foreclosing a mortgage. His contention is that the complaint upon which the action was based did not demand a foreclosure of the mortgage, that the judgment was entered against him upon his failure to appear in the action, and was therefore erroneous for the reason that the court was not authorized to grant relief in excess of that demanded in the complaint. The record on appeal shows clearly that there was no demand in the complaint for the foreclosure of the mortgage, and it is settled law that in a default case the relief granted cannot be greater in amount or different in kind than that prayed for. (Code Civ. Proc., sec. 580; Foley v. Foley, 120 Cal. 33 [52 Pac. 122, 65 Am. St. Rep. 147]; Brooks v. Forington, 117 Cal. 219 [48 Pac. 1073]; 18 Cal. Jur. 467.) Indeed the parties stipulate that the judgment ijiay be reversed and that costs on appeal of $47.30 may bei taxed against respondent. This stipulation is sufficient under section 954a of the Code of Civil Procedure to restore jurisdiction of the trial court over the subject matter of the judgment and a remittitur may issue forthwith.

Judgment reversed and costs taxed accordingly.

Wood, J., and Gould, J., pro few., concurred.