Minehan v. Silveria

GRAY, J.,

pro

tem.

The record, on this appeal, consists of the judgment-roll. The complaint alleges that three defendants, named therein, to wit, a copartnership and its two partners were indebted to plaintiffs in the sum-of $1993.45 for goods sold and delivered. The three defendants filed a joint general demurrer, of which no disposition is shown. Subsequently the two copartners answered, in two inconsistent counts, denying any indebtedness and admitting an indebtedness of $344. The court found “that defendants are indebted to plaintiffs in the sum of $343.55, . . . That defendants have heretofore tendered said sum of $343.55 into court,” and concluded “that plaintiffs are entitled to a judgment against said defendants in the sum of $343'.55 without costs and that defendants are entitled to their costs herein”. The judgment adjudged “that plaintiffs do have and recover from defendants the sum of $343.55, without costs, said sum having been paid into court” and “that defendants are entitled to their costs”.

[319]

Assuming that the judgment against “defendants” included

all

defendants, plaintiffs argue that, as the' answer of the copartners abandoned the joint demurrer and the co-partnership defaulted by failing to join in the answer, the judgment against the copartnership for less than the demand of the complaint is erroneous. The judgment against “defendants” is uncertain as to which defendants are indebted. There being no words of reference to the caption of the judgment, no resort to it can be had for aid.

(Hawley Bros. etc. Co.

v.

Brownstone,

123 Cal. 643 [56 Pac. 468];

Morton

v.

Shannon,

26 Cal. App. 689 [147 Pac. 1179].) Neither do the recitals of the findings and judgment that “defendants” were present at the trial remove the uncertainty for the same uncertainty is also there present. To remove this uncertainty and to determine the scope and effect of the judgment, the entire judgment-roll may be examined.