Civil Procedure · MBE-tested
THE PITTSBURGH COAL MINING COMPANY, Respondents, v. WM W. GREENWOOD and Others, Appellants
39 Cal. 71·Supreme Court of California·1870·CA
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Opinion
No. 2,066.
THE PITTSBURGH COAL MINING COMPANY, Respondents, v. WM W. GREENWOOD and Others, Appellants.
Practice.—Pleading.—A judgment on default for damages is erroneous, if no amount of damages, nor a prayer for damages, be contained in the complaint, notwithstanding the complaint states facts sufficient to sustain a judgment for damages.
Appear from the District Court of the Fifteenth District, City and County of San Francisco.
The plaintiff commenced an action against several defendants to recover possession of a tract of coal-hearing land, and to procure an injunction, bfo damages were prayed for in the complaint, and none were stated or claimed in the summons. The cause was tried on the complaint and answer of two of the defendants, and judgment was rendered against all the defendants for twelve thousand five hundred dollars damages. From this judgment, Cline and Goldstine, who made no answer, brought this appeal.
Thomas A. Brawn, for Appellants.
The rendition of judgment against the defendants, who failed to answer, for damages, was error. (Practice Act, Secs. 39, 147; Stephens’ Pleading, marginal page, 420; 1 Chitty’s Pleadings, marginal page, 452; Van Santvoord’s Pleading, 361; Raun v. Reynolds, 11 Cal. 19; Gage v. Rogers, 20 Id. 91; Parrott v. Denn, 34 Id. 79; Lamping & Co. v. Hyatt et al. 27 Id. 102; Gautier v. English, 29 Id. 166; Lattimer v. Ryan, 20 Id. 628.)
No brief for respondent on file.
[MAJORITY — Temple, J.,]
Temple, J.,
delivered the opinion of the Court:
The complaint in this case states facts sufficient to sustain a judgment for damages, but the amount of damages is not stated in the complaint, nor is there a prayer for damages. No damages are stated or claimed in the summons. The defendants, who appeal, made default, and judgment was rendered against them for twelve thousand five hundred dollars damages. This was clearly erroneous, and that part of the judgment which awards damages against the appellants must be reversed and set aside; and it is ordered that the judgment be so modified.
Mr. Justice Wallace, being disqualified, did not participate in the decision.