Atlantic, Gulf & Pacific Co. v. Wright

BURNETT, J.

The appeal is from a default judgment entered by the clerk of the superior court in an action upon a promissory note.

The whole contention of appellants is based upon an obvious clerical misprision in the memorandum of default attached to the complaint and is supported by an argument more ingenious than persuasive. This memorandum recited that: “In this action the defendants, Susie D. Wright and Frank V. Wright, having demurred to plaintiff’s complaint on file herein, and said demurrer having been overruled by order of court, with leave to defendant to answer, and said defendant

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having failed to answer within the time allowed, after due notice of overruling said demurrer had been given, the default of said defendant in the premises is hereby duly entered herein.”

The “judgment on demurrer” contains these recitals: “In this action the defendants, Susie D. Wright and Frank Y. Wright, having demurred to plaintiff’s complaint on file herein, and said demurrer having been overruled by order of court, with leave to defendant to answer within ten days, and said defendants having failed to answer within the time allowed, after due notice of overruling said demurrer had been given and the default of said defendants in the premises having been duly entered according to law, ’ ’ etc. If there is any uncertainty in the memorandum as to whether the default of one or both of the defendants was entered, it is entirely removed by the language of the judgment.

By any fair and reasonable construction of these two instruments the conclusion is reached that when the word “defendant” appears it was intended to include both defendants. But it is proper also to consider the entire judgment-roll including the complaint and the demurrer, and thereby the matter is settled beyond peradventure. The rule is undoubtedly as stated in section 45 of Freeman on Judgments, as follows: “In ease of doubt regarding the signification of a judgment or of any part thereof the whole record may be examined for the purpose of removing the doubt. ... On the other hand, though the word ‘defendant’ is written in the body of the judgment, it will be construed as referring to and including all the defendants named in the caption.” (See, also, 25 Am. & Eng. Ency. of Law, 1070, and cases cited.)