Brown v. Caldwell

SHAW, J.

Action to recover from defendants on their joint and several promissory note.

The appeal is from a judgment rendered against both defendants, and is prosecuted upon the judgment-roll alone.

On behalf of appellant Tungate, it is contended that the judgment as to him should be reversed, for the reason that it does not appear that any summons was ever issued or served upon him; nor does the judgment-roll disclose any answer, demurrer or other appearance filed on his part. The judgment, however, recites that defendant Tungate appeared by Watkins & Blodget, as attorneys for himself and his co-defendant Caldwell. Section 1014, Code of Civil Procedure, provides that “a defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his

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appearance, or when an attorney gives notice of appearance for him.” While under the provisions of section 670, Code of Civil Procedure, his answer or demurrer is made a part of the judgment-roll, the notice of appearance which he may give to plaintiff, or which his attorney is authorized to give under the provisions of section 1014,

supra,

constitutes no part of such roll; hence, failure to serve Tungate with a summons, and the absence of an answer, demurrer or other appearance on his part, all of which appears from the judgment-roll, is not inconsistent with the fact recited in the judgment that he did appear in one of the other modes authorized by law, evidence of which, under the statute, constitutes no part of the judgment-roll. “The code does not require such appearance to be made part of the judgment-roll; and as appellant appeals upon the judgment-roll alone, which shows nothing' contradictory of or inconsistent with said recital (which was that defendant regularly appeared in said action by-, an attorney of the court), it must be taken as at least

prima facie

true.”

(Lyons

v.

Roach,