Parrott v. Den

This appeal is taken from the judgment and from an order denying a motion made by the defendant to set the judgment aside under the sixty-eighth section of the Practice Act.

First—The motion to set aside the judgment and for leave to answer, was properly overruled; for the reason, if for no other, that there was no affidavit of merits. Such affidavit was indispensable. (Bailey v. Taaffe, 29 Cal. 422.) Should *81the answer to the original complaint he treated as an affidavit of merits, as defendant claims it should be, still its effect must be limited to the note and mortgage as presented in that complaint. But the judgment was not entered on the original, but upon the amended complaint, by which, as we understand it, a trifling error in the description of the securities in the original was corrected and cured. The answer to the original complaint was based upon a quibble rather than upon a meritorious defence to the claim intended to be prosecuted, but the case having been relieved of the difficulty by amendment, and the old complaint having thereby become obsolete, the merits to be developed by affidavit related of course to the claim of the plaintiff in its new form—that is to say, under the corrected description given of it. We cannot depart from the rule established in Bailey v. Taaffe. Every consideration of expediency and justice is opposed to the opening up of cases in which judgment by default has been entered, unless it be made to appear prima facie that the judgment, as it stands, is unjust.

Second—There is, however, error in the judgment in that the relief granted exceeds the relief demanded in the complaint. (Practice Act, Sec. 147; Gautier v. English, 29 Cal. 166.) The allowances for taxes and interest thereon, and for interest on the counsel fees, must be struck from the decree.

Subject to these modifications, which the Court below is directed to make, the decree is affirmed.