Brooks v. Forington

Van Fleet, J. Action to foreclose a mortgage, in which defendant suffered default. The mortgage provided that, in the event of foreclosure, the mortgagee might retain from the proceeds of sale the costs and charges of suit, “ including counsel fees at the rate of -per cent.” The prayer aslced for the principal and interest due, “ and for costs of suit,” the sale of the mortgaged premises and application of proceeds in payment of the amount due, and for general relief; but it did not in terms ask an award of counsel fees. The court in its decree, however, made plaintiff an allowance for counsel fees in the action, and the only question involved in the appeal is whether the allowance of that item was proper under the circumstances.

Appellant contends that it was not; that the allowance was in excess of the relief demanded in the complaint, and that this was in violation of section 580 of [220]the Code of Civil Procedure, which provides: “ The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.”

Respondent contends that the prayer was sufficient to entitle the court to make such allowance; that in an action of foreclosure it is only necessary to aver the specific relief to which plaintiff is entitled, and that under a general prayer that the mortgaged premises be sold and the proceeds applied to the amount found due, the plaintiff will be entitled, on default, to any relief consistent with the averments of the complaint; that as the right to counsel fees was properly averred, the award thereof was authorized. The position of respondent does not find support in the decisions of this court giving application to section 580. The relief “ demanded in his complaint ” is held to refer to the relief asked in the prayer—the feature of the pleading to which alone reference may be had in default cases, to ascertain what relief the plaintiff seeks; and the rule of the statute applies in its strictness to actions in foreclosure alike with those of any other character. (Raun v. Reynolds, 11 Cal. 14, 19; Gautier v. English, 29 Cal. 165; Parrott v. Den, 34 Cal. 79.)

In Raun v. Reynolds, supra, where the objection was to the manner in which the property was directed by the decree to be sold, it was said in reversing the judgment: “Judgment was taken in the cause by default, and the decree could give no relief beyond that which was demanded in the bill. (Practice Act, sec. 147.) The complaint simply asked a foreclosure of the mortgage and a sale of the property to satisfy the judgment; there was no prayer that the sale should be had in a manner different from that prescribed in the statute for sales of real property under execution. Admitting the authority of the courts to direct in the decree the manner in which the sale should be conducted, there is no allegation in the complaint which would warrant a de