White v. Wise

California Supreme Court May 29, 1905

White v. Wise, 7 Cal. Unrep. 212 (Cal. 1905)

81 P. 664; 1905 Cal. App. LEXIS 291

McLaughlin

Opinion of the Court

McLAUGHLIN, J.

Upon a former appeal in this case, the judgment in favor of the respondent there, the appellant here, was reversed by the supreme court, "with directions to the lower court to enter a judgment on the findings for the appellant as prayed for in this answer”: White v. Wise, 134 Cal. 613, 66 Pac. 959. The appellant mentioned there was Wise, the respondent here, and the prayer of his answer was as follows: "That the prayer of said complaint may be denied, and that said plaintiff take nothing by this action, and that this defendant have judgment against plaintiff for his costs herein incurred.” Upon the receipt of the remittitur the lower court, on motion, rendered judgment as follows: "Now, therefore, in pursuance of the premises, and in accordance with judgment, decision and direction of the said superior court, .... it is ordered, adjudged and decreed that the prayer of plaintiff herein be, and the same is hereby, denied; that the said plaintiff shall take nothing by this action; and that the defendant John H. Wise shall have and is hereby given judgment against said plaintiff Frankie White for his costs herein incurred, amounting to the sum of $153.80. And said defendant is entitled to and shall have any appropriate process of this court to enforce said judgment hereby given, and each and every part thereofIt is conceded that, but for the concluding clause in said judgment, there could be no pretext for this appeal. Notwithstanding appellant’s strenuous objections to the language italicized, we cannot refrain from saying that this is an *214instance where “much ado about nothing’’ has operated to vex an adverse litigant, and needlessly consume the time of the court. The successful defendant would, under the law, be entitled to appropriate process to “enforce said judgment, and every part thereof,” regardless of this clause, which could give him no more.

This appeal is without merit, and hence the judgment is affirmed, with $50 damages, and the superior court is directed to include this sum of money in the judgment, in addition to other costs.

We concur: Chipman, P. J.; Buckles, J.

Reference

Full Case Name: WHITE v. WISE
Status: Published
Syllabus: 'Appeal — Remand — Proceedings Below—Judgment.—Where a judgment for plaintiff was reversed on appeal, with directions to render judgment for defendant as prayed in the answer, which was that the prayer of the complaint he denied, and that plaintiff take nothing by the action, and that defendant have judgment against plaintiff for costs, a judgment rendered that the prayer of plaintiff be denied, that plaintiff take nothing by the action, and that defendant have judgment against plaintiff for costs, and is entitled to “appropriate process” to enforce the judgment, and every part thereof, was not objectionable, as granting more relief than demanded, in so far as it awarded process to enforce the judgment.