Chester v. Jumel — 2 Silv. Sup. 179

Majority

p. 179

Stephen M. Chester, Respondent, v. Francois Henry Jumel et al., Appellants.

Supreme Court, First Department, General Term,

May 24, 1889.

Headnote

1. Judgment. Relief.—The relief awarded, if within the issue joined in an action, may exceed the demand for judgment in the complaint.

2. Same. Vacating.—There is no error in denying a motion to vacate the judgment, where papers which do not prejudice are improperly inserted in the judgment roll.

Appeal from an order denying a motion to vacate the judgment.

Everett P. Wheeler, for appellants.

Douglas Campbell, for respondent.

The motion to vacate the judgment was made in part upon the ground of irregularity, founded upoq the fact that it had been entered without application to the court. This was afterwards corrected and the judgment entered and settled as it is now contained in the case.

p. 180

The application was also considered to be supported by the position that it could not be entered for the distribution of the funds in the hands of Elliott, or for any deficiency that might remain due to the persons affected by it, but a complete determination of the action, heard and determined by the referee, required these directions to be contained in the judgment.

It was not important that the demand for judgment contained in the complaint did not specifically require all the relief provided for by the referee and the judgment following his report. For, where an issue of fact may be taken in an action, as was the case here, the judgment is required to dispose of the action and to award any suitable relief adapted to the case and within the issue. The relief which was provided for was within the application of this provision of the Code, as it is contained in section 1207.

The judgment was also objected to as containing papers which should not have been inserted in it.

Whether the objection is well founded, depends upon section 1237 of the Code of Civil Procedure, under whose language it may well be doubted whether any more was added to, or made a part of the judgment roll, than was in this manner directed to be contained in it. But, even if papers were added which should not have been included in the judgment, no harm was produced by this addition, to .the defendants, or either of them, and consequently there was no material error included in the denial of the defendants’ motion. It stood upon no substantial ground. The commencement of the other action by one of the heirs while-this suit was pending, and the entry of judgment in it, in no manner interfered with the jurisdiction of the court over this action, or with the progress of its proceedings. Whatever irregularity there was, consisted in the commencement of the other suit by one of the defendants in this action while this suit was pending and in progress, and if this had been interposed as a defense in the other action, there seems

p. 181

to be no legal answer which would have prevented it from proving successful.

The order was right, and it should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, Ch. J.. concurs.