Clark v. Palmer

Vanclief, C.

This action was brought in the county of San Diego by Clark against Eliza M. Palmer, Douglas Gunn, and C. E. Johnson to foreclose a mortgage executed by Eliza M. Palmer to secure the payment of her promissory note to the plaintiff for the sum of five thousand dollars and interest. The ground upon which Gunn and Johnson were made parties defendant is expressed in the complaint, as follows: “That Douglas Gunn and Charles Edward Johnson have, or claim to have, some interest in or claim upon said premises as mortgagees or otherwise, which claims or interest were acquired by them subsequent to the mortgage of plaintiff.”

No relief is asked affecting Gunn and Johnson, except that plaintiff’s mortgage be first satisfied from the proceeds of a sale of the mortgaged property.

The summons, with a copy of the complaint, was served on Gunn in said county. The summons contained the following notice: “ And you are hereby notified that if you fail to appear and answer the said complaint as above required, said plaintiff will take judgment against you for the relief demanded in his complaint.”

The summons also contained a specific statement of the nature of the action, and of Gunn’s interest in it as subsequent mortgagee.

The defendant Gunn failing to appear within the time required by law, his default was regularly entered, and thereupon a decree of foreclosure in the usual form was rendered by the court on the thirty-first day of December, 1889.

On the twenty-third day of December, 1890, the defendant Gunn filed his notice of this appeal from the judgment of foreclosure.

The only point made by the appellant is, that the notice in the summons does not comply with subdivision 5 of section 407 of the Code of Civil Procedure, which, in a case of this kind, requires a notice that “the plaintiff will apply to the court for the relief demanded in the complaint.”

The Code of Civil Procedure, section 4, enacts that “ its provisions and all proceedings under it are to be liberally construed, with a view to effect its ohjecls and to promote justice”; and the courts have emphatically sanctioned the application of this rule of construction to section 407 of the Code of Civil Procedure, and to a similar section in the code of New York. (Berwick v. Muir, 83 Cal. 368; 18 Am, St. Rep. 192; King v. Blood, 41 Cal. 315; McCoun v. New York etc. R. R. Co., 50 N. Y. 176.) So construed, I think the notice that plaintiff would “ take judgment .... for the relief demanded in his complaint” was, in substance, a notice that he would “ apply to the coxirt” for that relief. That being the only laivjul mode by which he could take it (Code Civ. Proc., sec. 585), the notice, as expressed, implies that he intended to take it in that mode, and not in any unlawful manner.

As the record shows that the plaintiff did apply to the court for his relief, that the court did grant such relief as was given, and that the relief given did not differ from or exceed that demanded in the complaint, it seems inconceivable that the defendant could have been misled or injured by the variance of the summons from the form of words prescribed by the code.

I think the judgment should be affirmed.

Fitzgerald, C., and Belcher, C., concurred.

The Court.

— For the reasons given in the foregoing opinion, the judgment is affirmed.