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Himmelmann v. Spanagel

39 Cal. 401 Court Cal. Docket No. 1,913 English

Delivered by Rhodes, C. J.,

Contents

Majority

p. 401
No. 1,913.
A. HIMMELMANN, Respondent, v. GEO SPANAGEL et als., Appellants.

Headnote

Pbactice— Objections. — Objections which go to the sufficiency of the statement of facts contained in the complaint, but not to the sufficiency of the facts themselves, cannot he entertained, unless presented by special demurrer.
Idem.—Default. — The default of a defendant amounts to an admission of the facts stated in the complaint, and leaves no issue between him and the plaintiff.
Idem.—Findings.—Judgment.—A defendant in default is unaffected by the findings, and has no grounds of complaint if the judgment is not sustained by or is repugnant thereto.
Appeal from the District Court of the Fourth District, City and County of San Francisco.
The appellants were sued jointly with other persons.
The other facts are stated in the opinion.
p. 402
E. A. Lawrence, for Appellants.
First—The judgment is unauthorized, because the complaint does not state sufficient facts.
Second—The judgment is entered upon a finding. It was not necessary that findings should be filed; but having been filed, the judgment corresponds therewith. (Lyons v. Lyons, 18 Cal. 447 .)
R. P. & Jabish Clement, for Respondent.
First—The objections made to the complaint were not raised by appellants in the Court below. They do not go to the sufficiency of facts, but to the sufficiency of the statement of the facts. Therefore, if they had been well founded, they would have been obviated by the verdict. (Jones v. Block, 30 Cal. 228 .)
Second—No findings were called for at the trial by anyone—certainly not by appellants, who suffered default. Therefore the judgment will not be reversed for want of a finding upon any point. And no exception was taken to the findings; therefore the judgment will not be reversed for any defects in them.

delivered the. opinion of the Court:

The appellants, Roper and Reay, entered their appearance in the action, and not having demurred or answered, their default was entered. Their objections to the complaint go to the sufficiency of the statement of the facts, but not to the sufficiency of the facts themselves, and cannot be entertained unless presented by special demurrer. Their default amounting to an admission of the facts stated in the complaint, there was no issue as between them and the plaintiff. They are, therefore, unaffected by the findings, and have no cause to complain that the judgment is not sustained by, or is repugnant to, the findings.

Judgment affirmed.

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