Tappendorff v. Moranda

HARRISON, J.

The plaintiff is the wife of Fredrich Tappendorff, and seeks by this action to recover from the defendant the possession of certain real property in the county of Humboldt. In her complaint, after setting forth facts under which a homestead might be declared by her husband, she alleges that on the sixteenth day of May, 1878, her husband

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executed and acknowledged “ a valid declaration of homestead ” upon said premises, and that the same was on said day recorded in the office of the county recorder. A copy of the said declaration is attached to the complaint, and by averment made a part thereof. This copy contained the statement “that the actual cost value of said property is three thousand dollars.” The plaintiff further alleges that on October 20, 1897, her husband executed to the defendant a lease of said land for the term of five years, under which the defendant entered and took possession thereof; that she did not unite or join with her husband in the execution of the said lease; that she has demanded possession of the said premises from the defendant, and that he has refused to deliver the same, and still withholds them from her. The defendant demurred to the complaint, upon the ground that there was a defect of parties plaintiff, in that her husband should have been joined with her; that the plaintiff has not the capacity to sue, and that the complaint does not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the defendant failing to answer, his default was entered on the sixth day of April, 1899. Thereafter—April 13th—the plaintiff applied to the court for the relief demanded in her complaint, and upon producing the original declaration of homestead, as recorded in the office of the county recorder, wherein was stated the cash value of the premises, instead of the cost value thereof, the court made an order permitting her to amend her complaint by striking out, in the copy of the declaration of homestead attached thereto, the word “ cost,” in the paragraph above quoted, and inserting therein, in its place, the word “cash.” This amendment was made without any notice to the defendant, and without his consent, and neither the said amendment, nor a copy of the complaint as amended, was served upon him. Immediately after making the amendment, the plaintiff presented to the court evidence in support of her complaint, and judgment was thereupon rendered in her favor, From this judgment the defendant has appealed, bringing the appeal here upon the judgment roll, including a bill of exceptions.