Swain v. Burnette

California Supreme Court May 28, 1888 No. No. 9898Published

Before: Hayne

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Holding. A default judgment against a plaintiff must be reversed if the complaint states a cause of action, even if the plaintiff previously sought leave to amend. Furthermore, an order striking portions of a complaint is reviewable on appeal from a final judgment, and such motions are improper when the remedy for defective pleading is a demurrer.

Issues

Whether a default judgment against a plaintiff should be reversed if the complaint states a cause of action.
Whether an order granting a motion to strike is reviewable on appeal from a final judgment.
Whether the complaint states a cause of action for specific performance with compensation for deficiencies.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It is well settled that a judgment by default in favor of the plaintiff will be reversed on appeal from the judgment, unless the complaint states a cause of action.”

“The judgment by default against the plaintiff is in effect an adjudication that he has no case, or in other words, that his complaint does not state a cause of action.”

“If it be defectively stated, the remedy was by demurrer, and not by motion to strike out.”

Synopsis

Judgment by Default—Review on Appeal.—Where a demurrer to a complaint is withdrawn, and leave to amend is granted, and judgment by default is entered against plaintiff for failure to amend, such judgment will be reversed if the complaint states a cause of action.

Specific Performance—Compensation for Deficiency.—Where the defendant is not able to perform the whole of the agreement, he may, at the Review of Order Striking out a Portion of the Complaint. —An order striking out a portion of the complaint, not being itself appeal-able, may be reviewed on appeal from the final judgment.

Agreement to Exchange Land — Complaint for Specific Performance • — Material Averment—Striking out.—If an agreement for specific performance is executed on one side by a conveyance, and it turns out that for some reason the agreement cannot be enforced, the party conveying is entitled to á reconveyance, and therefore an averment relating to the conveyance tends to state a cause of action, and should not be stricken out.

Material Averment—Defective Statement—Remedy.—A material averment which is defectively stated should not be stricken out. The remedy is a special demurrer.

Specific Performance—Rents and Profits.—If the plaintiff has exe-i cuted his side of an agreement to exchange lands by a conveyance, he is i entitled, in an action to enforce the agreement, to an account of rents and profits, and an averment relating thereto should not be stricken out.'

Hayne, C. Suit to compel specific performance of an agreement to exchange lands. The defendants demurred to the amended complaint, and moved to strike out portions of the same. Both matters came on to be heard at the same time. The court granted the motion to strike out; “and in the matter of the demurrer, counsel for plaintiff asking leave to amend the amended complaint herein, and the demurrer by consent of all parties being withdrawn ” (folio 67), leave to amend was granted. Plaintiff failed to amend within the time allowed by the court, and thereupon final judgment was entered against him by default. The appeal is taken from the judgment, — a bill of exceptions incorporating the proceedings on the motion to strike out having been settled and filed.

1. The demurrer having been withdrawn cannot be considered. The judgment was by default, and if the complaint (as it stood after the granting of the motion [301]to strike out) states a cause of action, the judgment cannot stand. It is well settled that a judgment by default in favor of the plaintiff will be reversed on appeal from the judgment, unless the complaint states a cause of action. (Hallock v. Jaudin, 34 Cal. 172; Choynski v. Cohen, 39 Cal. 502; 2 Am. Rep. 476; Pittsburgh Mining Co. v. Greewood, 39 Cal. 71; Rhoda v. Alameda County, 52 Cal. 350; and see Howard v. Galloway, 60 Cal. 11.) And upon analagous principles a judgment by default in favor of the defendant will be reversed on appeal from the judgment if the complaint states a cause of action. The judgment by default against the plaintiff is in effect an adjudication that he has no case, or in other words, that his complaint does not state a cause of action. If it does state a cause of action, the judgment is erroneous. It makes no difference that the plaintiff asked leave to amend. It is quite possible that the complaint could be improved in some respects; and it is to be presumed that plaintiff, at the time he asked leave to amend, desired to improve it. But if it stated a cause of action, this was not necessary. And the plaintiff had a right to change his mind and stand upon it as it was. The case is like the very common one where a general demurrer is sustained, and upon request of plaintiff leave to amend is granted, but not availed of, and judgment goes by default. No one could doubt that in such a case, if the complaint states a cause of action, the judgment must be reversed.

The question, therefore, is, whether the complaint states a cause of action. And we think it does, although it is very loosely drawn. It proceeds upon the principle that where the defendant is not able to perform the whole of his contract, he may, at the option of the plaintiff, be compelled to perform it as far as he can, with compensation for the deficiencies. (See 1 Story’s Eq. Jur., sec. 779; Marshall v. Caldwell, 41 Cal. 614, 615.)

Swain v. Burnette

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