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Barney v. Vigoreaux

92 Cal. 631 Court Department Two. Decision date 1892-01-05 Docket No. 13641 English

Delivered by Sharpstein, J.

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p. 631
[No. 13641.
Department Two.
January 5, 1892.]
B. A. BARNEY, Respondent, v. A. W. VIGOREATUX, Appellant.

Headnote

Action upon Note — Pleading — Non-payment—Appeal — Support of Judgment. —In an action upon a promissory note, a failure to allege in the complaint that no part of the sum for which the note was given, except certain payments indorsed upon it, had been paid constitutes a fatal defect, for which a judgment in favor of the plaintiff will he reversed upon appeal.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a motion to vacate the judgment.
The facts are stated in the opinion of the court.
1. N. Thorne, and Oliver P. Evans, for Appellant.
W. H. Allen, for Respondent.

The record shows that the plaintiff brought his action against the defendant upon a promissory note, of which a copy is contained in the complaint. Copies of several receipts of payments, which it is alleged were indorsed upon said promissory note, are set out in the complaint, and plaintiff demands judgment for $340, balance of principal, with interest, etc.

There is no allegation that no part of the sum for which said note was given, except the sums indorsed upon it, has been paid.

The defendant did not appear in the action, although there was proof of the service of summons upon him, and his default was regularly .entered and judgment

p. 632
thereon entered against him, and within ten days thereafter he gave notice of a motion to vacate said judgment. The motion was heard and denied, and from the order denying that motion, and the judgment, the defendant appeals.

The omission to allege in the complaint that some part of the said note had not been paid constituted a fatal defect, for which the judgment must be reversed. (Frisch v. Caler, 21 Cal. 71 ; Davanay v. Eggenhoff, 43 Cal. 395 ; Scroufe v. Clay, 71 Cal. 123 .)

It is unnecessary to consider thé questions raised and discussed by counsel upon the motion to vacate the judgment, as the reversal of it accomplishes all that was sought by that motion.

Judgment and order reversed.

McFarland; J., and De Haven, J., concurred.

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