Von Der Kuhlen v. Hegel

SHAW, J.

Defendant Kate Hegel appeals from a judgment foreclosing a mortgage executed by her to secure the payment of a promissory note in the sum of $12,000 and interest thereon at seven per cent per annum, payable quarterly.

Defendants’ demurrer to the original complaint was sustained, and thereupon plaintiff filed an amended complaint praying judgment against defendants “(a) for the sum of $12,000.00, together with interest thereon at the rate of seven per cent per annum from the 19th day of October, 1918; (b) for the sum of - paid for taxes from the .—- day of-, 191—followed by a demand for attorneys’ fees, costs, order of sale, etc. Upon entry of defendant’s default for failure to answer, judgment was rendered against her for the principal of the note in the sum of $12,000, and interest computed from July 19, 1918, amounting to $441, and $120.22 for taxes alleged in the body of the complaint to have been paid by plaintiff. Sec

[417]

tion 580 of the Code of Civil Procedure provides: “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.” (St

aacke

v.

Bell,

125 Cal. 309, [57 Pac. 1012].) And in

Brooks

v.

Forington,

117 Cal. 219, [48 Pac. 1073], it is said: “The relief ‘demanded in his complaint’ is held to refer to the relief asked in the prayer—the feature of the pleading to which alone reference may be had in default cases, to ascertain what relief plaintiff seeks1; and the rule of the statute applies in its strictness to actions of foreclosure alike with those of any other character.”

[1]

Under the rule ‘stated, plaintiff was not entitled to judgment for interest other than as demanded at the rate of seven per cent per annum from the nineteenth day of October, 1918; nor, since no demand was made for any sum on account of taxes paid, was-he entitled to judgment therefor in the sum of $120.22. It thus appears that in rendering judgment the court erred in allowing $441 for interest, when the amount should have been $233.33, and likewise erred in allowing $120.22 for taxes, the total of which is $327.89 in excess of the amount which should have been awarded to plaintiff.