McMillan v. Greenamyer

WORKS, J.

This is an appeal from a judgment against three defendants upon a confession of judgment filed by two of them. Before the confession was filed the third defendant had interposed an answer to the complaint and, after it was filed and by leave of court, he presented an amended answer. The trial court, without in any manner disposing of this pleading and without the hearing of any evidence, and without any findings of fact, rendered judgment upon the confession. Respondent moved for a dismissal of this appeal on the ground that an appeal from a judgment by confession does not lie. We denied the motion

(McMillan

v.

Greenamyer,

50 Cal. App. 601, [195 Pac. 734]), and determined that the answering defendant had the right to maintain a defense in the action. A more detailed statement of the facts will be found in the opinion then deliv

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ered. Appellant presented a brief in opposition to the motion to dismiss the appeal, but has filed none for onr consideration in passing upon the appeal on its merits.

[1]

On the motion to dismiss we not only determined that the answering defendant had a right to defend, but we had this to say of his amended answer: “If the statements made therein were substantiated by proof, the court would have been justified in rendering a different judgment than that founded on the confession.” This was, in effect, a decision that the amended answer stated a defense, and the merit of the appeal was thus determined. We have, however, again examined the pleading and there is no doubt that it puts in issue material allegations of the. complaint and that it properly pleads defensive new matter as well.

The judgment is reversed and the cause is remanded.

Finlayson, P. J., and Craig, J., concurred.