Myers v. Washington

BISHOP, J. pro tern.

*

— This is an appeal by the defendant from an order made October 25, 1961, denying his motion to set aside the default judgment that had been entered January 27,1960. The ground of the motion was that the judgment, one entered by a court commissioner, granted relief not demanded in the complaint and therefore unauthorized because of the restrictions of section 580, Code of Civil Procedure. The motion was well grounded, we have concluded, and its denial is not to be justified because of the fact the defendant had brought two equity actions after the judgment was entered in which he sought without success to have it set aside.

The pertinent provision of section 580 is quite explicit: “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint. . . .” The reported decisions have not watered down this prohibition but have given it full effect. For example, we find it said in

Burtnett

v.

King,

33 Cal.2d 805, 808 [205 P.2d 657, 12 A.L.R.2d 333] : “It is a settled rule, and has been clearly stated in many recent authorities, that a default judgment by the court that exceeds the demand or gives relief where no demand is made therefor is void as in excess of the court’s jurisdiction. ...” (See also

Craft

v.

[770]

Craft,

49 Cal.2d 189, 192-193 [316 P.2d 345], and

Gudarov

v.

Hadjieff,

38 Cal.2d 412 [240 P.2d 621].)

That the default judgment in our case runs afoul of the rule becomes clear as we compare the demands of the complaint with the terms of the judgment. The complaint alleged that the parties had formed a partnership to buy real estate and improve it by constructing residences; that they did buy and build but that defendant took possession of part of the partnership property and by threats of violence ousted plaintiff from certain improved real estate; that defendant has since then refused to carry on partnership business and has refused to permit plaintiff to do so; that defendant has further refused to account for partnership property held by him worth in excess of $8,000. In the prayer of the complaint plaintiff asked: That the partnership be declared to be dissolved and terminated; that a receiver be appointed and defendant restrained from disposing of partnership property; that an account be taken of all partnership dealings from the beginning ; that the partnership property be sold, debts paid and surplus divided equally between the parties and that such other relief be granted as appeared meet and just.