Rardin Logging Co. v. Bullok

DOOLING, J.

Defendant Barker appeals from an order denying his motion to. set aside default judgment entered against him. The motion was based upon the ground that the judgment was void because the complaint had been amended before the entry of his default by the clerk and the subsequent rendition of the default judgment by the court and that the complaint as amended had not been served upon him.

The complaint was filed on July 17, 1950, and the return of service shows that the complaint and summons were served on appellant the same day. Appellant at no time filed any pleading.

[68]

It is shown by affidavit that on the hearing of the demurrer of another defendant the trial judge in open court ordered the complaint amended on its face in the manner hereafter shown. This was on September 8, 1950. Appellant’s default was entered by the clerk on October 27, 1950. On November 1, 1950, the court heard evidence on behalf of the plaintiff and ordered the judgment against appellant which was filed two days later.

Two rules of law conjoin to bar appellant from the relief which he seeks.

1. If an amendment to a complaint is not in a matter of substance the default against a defendant is good even though he was not served with the amended complaint.

(Stack

v.

Welder,

3 Cal.2d 71, 73 [43 P.2d 270] ;

San Diego Bank

v.

Goodsell,

137 Cal. 420 [70 P. 299];

Woodward

v.

Brown,

119 Cal. 283, 304 [51 P. 2, 542, 63 Am.St.Rep. 108] ;

Zierath

v.