McKesson v. Hepp

California Court of Appeal Jun 21, 1923 No. Civ. No. 4428.Published

Before: Tyler

AI Brief

AI-generated · verify before citing

Holding. The court held that a judgment may exceed the amount prayed for in the complaint if consistent with the issues tried, but must be reduced to account for undisputed evidence of a valid counterclaim credit.

Issues

Whether a judgment may exceed the amount prayed for in the complaint when an answer is filed.
Whether the appellate court may modify a judgment to account for an undisputed counterclaim credit.

Disposition. Affirmed on condition of remittitur; otherwise reversed.

Quotations verified verbatim against the opinion

“The judgment, in so far as it awards plaintiff an amount in excess of that which he prayed for, is not for that reason objectionable.”

“A court may, therefore, under the section grant additional relief under the original complaint, without an amendment thereof for that purpose alone, when the relief is not inconsistent with the pleadings and the issues tried”

“The evidence, however, shows, and without conflict, that defendant was entitled under one of his items of counterclaim to a credit of $44.09 for freight paid by him. The judgment, therefore, to this extent, with the interest allowed thereon, is excessive.”

TYLER, P. J.

This action was brought to recover the sum of $467.46 for goods sold and delivered, with interest thereon from October 21, 1921. The complaint was filed November 25, 1921. The answer denied the indebtedness and set up a counterclaim in the sum of $164.09. The ease went to trial and plaintiff recovered judgment on June- 23, 1922, for the sum of $474.66, with interest from the sixteenth day of July, 1921, amounting to the sum of $7.20.

Upon both principal and interest, it will be noticed, the judgment is in excess of the amount prayed for.

Findings were waived.

The evidence upon the trial—which is before us—shows without conflict that defendant was entitled to a credit in the sum of $44.09 under one of the items of his counterclaim. Defendant sought to have the matter corrected upon motion for a new trial. His motion was denied. He is here asking for a modification of the judgment. There is no contention with reference to this state of the record. At the hearing of the motion for a new trial plaintiff contended, and does here, that inasmuch as findings were waived the defendant is in no position to take advantage of the situation and is without remedy.

The judgment, in so far as it awards plaintiff an amount in excess of that which he prayed for, is not for that reason objectionable. Section 580 of the Code of Civil Procedure provides: ‘£ The relief granted to plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint, but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.” The relief provided for by this section is confined in case of default to that demanded in the complaint, as was the rule under a prayer for special relief in equity; while in other cases it is extended to granting relief similar to that granted under a prayer for general relief in chancery courts.

(Johnson

Polhemus,

99 Cal. 240 [33 Pac. 908].) The

[621]

section is but a concise statement of the, rule observed upon the subject of relief in courts of equity

McKesson v. Hepp

AI Brief

TYLER, P. J.

More from California Court of Appeal

Related research

AI Brief