Gaddis v. Grant

BURNETT, J.

The action was brought to recover the amount due on a promissory note and to foreclose a mortgage given to secure the payment of the same. Defendant filed a demurrer to the complaint on the grounds, “That the said complaint does not state facts sufficient to constitute a cause of action,” and, “That said complaint is uncertain in this, that it does not appear therefrom how much money has been paid, either on account of principal or interest on said promissory note, or, in what manner or how the amount of interest stated to be now due and owing on said note is calculated, or how such an amount can be due or payable.”

The demurrer was overruled, and after answer filed by defendant, the cause came on regularly for trial. There was no appearance by or on behalf of appellant at said trial, and after the evidence on behalf of plaintiff was submitted, the court permitted him to file an amendment to his c.omplaint to correct a clerical error in paragraph 5 thereof as to the respective items of principal and interest, changing the former from five thousand five hundred dollars to six thousand dollars, and the latter from $1,274.20 to $774.20, but leaving the aggregate amount the same. The court thereupon rendered judgment for plaintiff as prayed for and appellant has appealed from said judgment upon the judgment-roll alone. He makes two points: First, that the court erred in overruling his demurrer for uncertainty, and second, that the court should not have permitted the “filing of the amendment to the complaint without notice to defendant or service upon him.” There is no merit whatever in either point, and it is quite apparent that this appeal should never have been taken.

There was no uncertainty as to the amount claimed and alleged for interest and for principal in said paragraph 5 of the complaint, but it did appear from the whole of the pleadings that too much was claimed for interest and too little for principal. The aggregate amount, though, as we have seen, was correct. This shows that the mistake was entirely without prejudice. Besides the specific allegation as to principal and

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to interest was entirely unnecessary. It was sufficient to aver that the whole amount was owing and unpaid. The payments made upon a promissory note and the items constituting the balance due are but items of an account, which, if the defendant wants, he can demand in the form of a bill of particulars, but a demurrer for uncertainty is hot the remedy. (Code Civ. Proc., sec. 454;