Irvine v. Mazurette

NOURSE, P. J.

The appeal is on a settled statement. The action is a common count for work, labor and services alleged to be worth $3,300. The court found for plaintiff but held that the value minus credits was $1,448.80. Defendants appeal.

Appellants’ first contention, that the findings are contradictory, is clearly without merit. Finding 2 shows with sufficient clarity that plaintiff’s services during the first 33 weeks at $50 a week were worth $1,650 and during the next 17 weeks at $80 were worth $1,360 (a total of $3,010) whereas credit is given for $57.20 withholding taxes paid and $1,504 stipulated to have been received by plaintiff (total $1,561.20) leaving the balance of $1,448.80.

Next it is contended that the judgment is void for uncertainty because it states only, “That plaintiff have and recover Judgment in the sum of One Thousand Four Hundred Forty Eight Dollars and Eighty Cents ($1,448.80),” without naming the defendants from whom this amount is to be recovered. Respondent concedes that such is a mistake, but urges that judgment (and findings) make it clear that the judgment is against the defendants in this action and that such defect is considered a clerical misprision which the lower court can at any time correct

(Leviston

v.

Swan,

33 Cal. 480). But no correction is necessary under the circumstances of this ease. Though a number of defendants were named in the complaint, and an answer was filed on behalf of some of them, the individuals Mazürette and Armstrong were alone referred to in the findings of fact and conclusions of law as having appeared at the trial, and the judgment went against “the defendants” without specification of any names. However, these two individuals alone filed a motion for a new trial and thereafter filed the notice of appeal herein, and they alone filed the request for a reporter’s transcript. Thereafter a condensed statement in lieu of the reporter’s transcript was pre

[614]

pared and filed on behalf of the two individual defendants who thereafter had been noted as the only appellants. For these reasons there can be no uncertainty in the judgment and it would be an idle act to remand the case for a correction of the claimed error.