McGary v. Pedrorena

California Supreme Court Jul 1, 1881 No. No. 7,639Published

Before: Sharpstein

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Holding. The court held that a defendant cannot appeal a judgment based on an error that only affects a co-defendant, specifically the failure to serve an amended complaint on that co-defendant, when the appealing defendant did not personally take exception to the ruling.

Issues

Whether the failure to serve an amended complaint on a co-defendant constitutes reversible error when raised only by a defendant who was served.
Whether a defendant has standing to object to a ruling that affects only a co-defendant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The objection should have come from one or both of the defendants who had not been served, if from anybody; and as they did not severally or collectively object or except, we can not reverse the judgment as to them”

“The appellant Pedrorena, who took the exception, can not avail himself of it, for the obvious reason that it was taken to a ruling which in no way concerned him.”

Synopsis

Amendment of Complaint—Service of Amendment—Practice.—In order to give effect to both of sections 432 and 472 of the Code of Civil Procedure, it must be held that the former applies to amendments made before answer filed, and before the trial of an issue of law upon a demurrer; and that the latter applies to amendments made after answer filed, or after the trial of an issue of law upon a demurrer. Under the latter section, as it stood prior to the amendment of March 9th, 1880, service of the amendment upon the defendants was not required unless ordered by the Court.

Id.—Id.—Id.—Judgment by Default—Bill of Exceptions—Appeal.—In an action for foreclosure against P., the mortgagor, and M. and others, the former appeared and the other defendants made default, and after-wards the complaint was amended and judgment entered against all the defendants. On appeal by the defendants P. and M., it appeared by a bill of exceptions taken by the former, that when the case was called he objected to a trial, on the ground that the other defendants had not been served, and that it was admitted that this was the case. Held, that the defendant P. could not take advantage of the failure to serve the amendment upon the other defendant, and that the defendant M. could not avail himself of the exception taken by P., and consequently that no error as to him appeared upon the judgment roll.

Sharpstein, J.: The respondent brought an action to forclose a mortgage, and in addition to the mortgagor, Pedrorena, made certain other persons, who are alleged to have, or claim to have, some interest in the premises, which is subsequent and subject to the lien of plaintiff’s mortgage, defendants.

Only one of the defendants, Pedrorena, the mortgagor, appeared in the action. He demurred and moved to strike out, and after his demurrer and motion to strike out were overruled, filed an answer to the complaint. Aftewards the plaintiff, by leave of the Court, filed an amended complaint. The defendant, Pedrorena, again demurred and moved to strike out. The demurrer and motion were overruled, and he filed an answer to said amended complaint. Judgment was entered in favor of the plaintiff and against all of the defendants. Two of the defendants, Pedrorena and McDonald, appeal from that judgment. The point upon which they mainly rely as constituting error for which the judgment should be reversed is that a copy of the amended complaint was not served upon McDonald.

It has been held that an amendment to a complaint made “ of course * * * at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon by filing the same as amended,” must be served upon the adverse party, before his default can be regularly entered. (Code Civ. Proc. § 472; Elder v. Spinks, 53 Cal. 293.)

But the complaint in this case was not amended “of cou/rse;” [94]nor before demurrer filed; nor before the trial of the issue of law thereon.

Section 432 of the Code of Civil Procedure in the chapter relating to demurrers, prior to the amendent of March 9th, 1880, provided that: “If the complaint is amended, a copy of the amendments must be filed, or the Court may, in its discretion, require the complaint as amended, to be filed, and a copy of the amendments to be served upon the defendants to be affected thereby.”

■ In order to give force and effect to both of these sections of the code, we must hold that § 472 applies to amendments made before answer filed and before the trial of an issue of law upon a demurrer, and that § 432 applies to amendments made after an answer is filed, or after the trial of an issue of law upon a demurrer to a complaint. It is not claimed in this case that the Court required a copy of the amendments to be served upon any of the defendants. They were all regularly served by summons and a copy of the original complaint. Since the entry of the judgment in this case, in the Court below, § 432 has been amended, and the construction which we have given to it applies only to the language of the original section. As to the defendant who answered the amended complaint, service of a copy of it was undoubtedly waived, and it made no difference to him whether the other defendants were served or not.

McGary v. Pedrorena

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