Penrose v. Winter (1901) · DecisionDepot

Penrose v. Winter

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Dec 31, 1901 No. Sac. No. 800.Published

Before: Beatty, McFarland

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Holding. An allegation that a debt is "due and owing" is sufficient to support a default judgment, even if it constitutes a legal conclusion, as such technical defects in pleading are cured by judgment in the absence of a demurrer.

Issues

Whether a complaint alleging that a debt is "due and owing" is sufficient to support a default judgment in the absence of a direct allegation of non-payment.
Whether a complaint alleging that a successor guardian is the "lawful owner and holder" of a note and mortgage is sufficient to support a default judgment without a direct allegation of assignment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it ought to be held that the allegation that there'is now due and owing, etc., is sufficient to sustain a default judgment.”

“there is an allegation which implies an assignment. It is alleged that the plaintiff, as the guardian of said minors, and as successor of Craig, etc., is now the lawful owner and holder of the note and mortgage.”

“there is, in short, no substantial merit in the appeal, and the merely technical objections to the judgment are too refined to prevail against its substantial justice.”

Synopsis

The facts are stated in the opinion of the court.

Opinion — Beatty

BEATTY, C. J.

This is an action to foreclose a mortgage made by the defendant Winter to a former guardian of the minors, Ora and Rebecca Eiler. The Bank of Shasta, a corporation, was joined as a defendant, for the reason, as alleged, that it claimed some interest in, or lien upon, the mortgaged premises, subject and subordinate -to the lien of the mortgage. It was duly served with summons, but made default, whereupon a decree was entered in favor of the plaintiff. From this decree the corporation appeals, claiming that the complaint is so fatally defective that the judgment cannot stand.

The substance of the complaint is, that on the twenty-fifth day of July, 1893, John S. Craig was the duly appointed, qualified, and acting guardian of said minors; that on said day 1. S. Winter made and delivered his note and mortgage to said Craig as guardian of said minors; that afterwards the plaintiff herein was duly appointed, and is now the duly qualified and acting guardian of said minors, as successor of said Craig; that, as the guardian of said minors, and as the successor of said Craig, he is now the lawful owner and holder of said note and mortgage; that certain payments thereon have been made, and that there is now due and owing from said_ Winter to the plaintiff, as guardian, the sum of $982.72, with interest.

The defects in this complaint which it is claimed are fatal are,—1. That it does not allege non-payment of the note; and 2. That it does not allege an assignment of the cause of action to the plaintiff.

The point of the first objection is, that the allegation that “there is now due and owing,” etc., is not an allegation of any fact, but states a mere conclusion of law, and the case of

Ryan

Holliday,

110 Cal. 337, is cited to the proposition that such a statement of a legal conclusion cannot be held to supply the place of a direct allegation of the material fact that the debt is unpaid. In that case, as in this, the appeal was from a default judgment, and it was held that the fact that no demurrer had been interposed, and that the judgment had gone

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Penrose v. Winter

AI Brief

Synopsis

Opinion — Beatty

BEATTY, C. J.

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Dissent — McFARLAND

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