Roemer v. Nunes

LANGDON, P. J.

This is an appeal by defendant M. S. Nunes from an order denying his motion to set aside a judgment entered against him for $2,658.58 after his default had been entered. The motion was made upon the ground that the judgment-roll shows upon its face that the judgment against said defendant is void. This position is predicated upon a contention that the complaint does not state a cause of action against said defendant.

In the caption of the complaint Frank S. Nunes and M. S. Nunes, copartners, are named as defendants. In the body of the complaint it is alleged: “That defendants are co-partners doing business as a co-partnership; that on or about the second day of January, 1919, the defendants made, executed and delivered a certain promissory note which in words and figures is more particularly set forth as follows, to-wit:

‘Agreement to Purchase.

‘$699.44 Santa Maria, Calif., Jan. 2, 1919.

‘One day after date I promise to pay to Roemer, Roemer & Silva, co-partners at the city of Santa Maria, state of California, the sum of six hundred ninety-nine and 44/100 dollars for the following described property, to-wit: Mdse, per bill received.

‘I acknowledge receipt of said property and agree to keep the same in good order and repair. I also agree that until the total price of said property with interest is fully paid, said property will remain the property of said firm of Roemer, Roemer & Silva, and that I will not encumber or dispose of the same until full payment has been made by me. I agree to pay interest on the amount unpaid at the rate of eight per cent per annum payable annually. When the total price and interest has" been fully paid, and not before, the title to said personal property shall vest in the undersigned by virtue of this instrument. I agree to pay all taxes and assessments of any kind whatsoever which may become due and payable upon said property. I agree that if I fail to pay any of said sums when due or to become due or fail to perform any of the aforesaid or hereinafter mentioned conditions or should said property be attached or levied upon or should said property be burned or otherwise de

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stroyed, then at the option of the said firm of Roemer, Roemer & Silva the entire unpaid balance of this contract with interest shall in any of said cases immediately become due and payable to the said Roemer, Roemer & Silva and the said firm may enforce payment of the entire amount unpaid, or if said firm so elects the said firm of Roemer, Roemer