Hutchinson v. Superior Court

McKee, J.: Certiorari to review a judgment of the Superior Court of Inyo County, rendered in an action which originated in a Justices’ Court of that county, upon the following promissory note:

“$131 50. Bishop Creek, February 10, 1879.

“ Thirty days after date, without grace, I promise to pay to the order of Charles Wanacott, at the office of George C. Alexander, one hundred and thirty-one dollars and fifty cents, in gold coin of the United States of America, with interest [120]thereon in like gold coin, at the rate of •—— per cent per-, from-, until paid, for value received; and in case suit or action is instituted, to collect this nóte, or any portion thereof, I promise to pay such additional sum as the Court may adjudge reasonable as attorney’s fees in said suit or action. ' T. K.‘ Hutchinson.”

The case was taken up by appeal to the Superior Court, where 'the issue raised by the pleadings was tried with a jury, de novo, and the following verdict rendered: “We, the jury, find verdict for plaintiff.” Upon recording the verdict, the Court, after allowing the sum of fifty dollars as a reasonable attorney’s fee, gave judgment against the petitioner for one hundred and thirty-one dollars and fifty cents principal, eighty-six dollars costs, and fifty dollars attorney’s fee.

It is contended that the judgment is void, because there was no verdict to sustain it, and the Court in rendering it exceeded its jurisdiction.

Section 626, C. C. P., provides that when a verdict is found for the plaintiff in an action for the recovery of money * * * the jury must also find the amount of the recov-

ery. Assuming that the omission to find an amount for which judgment might be ordered, would be such an irregularity as might affect a judgment entered upon the verdict, and render the judgment voidable, the question arises, does such an irregularity render the judgment void ?

It will be observed that the Court acquired by the appeal, jurisdiction over the parties and the subject-matter of the action; therefore it had authority to try the issues made by the pleadings in the case. The record shows that there was no issue between the parties as to the execution, terms, or amount of the promissory note—these were all admitted; but it was pleaded in avoidance that “the note was made by the defendant without consideration, the same having been executed in accordance with and to carry out an illegal agreement ” between the maker and payee of the note.