Weisenborn v. Neumann , 60 Cal. 376 ( 1882 )

Morrison, C. J.:

Plaintiff brought this suit to foreclose a mortgage, and defendants demurred to the complaint. The demurrer was sustained and leave was given to amend within ten days. Notice of the order was duly served on plaintiff, but he failed to amend his complaint, and final judgment was entered against him on the twenty-ninth day of January, 1880. On the seventh of April of the same year notice was served on defendants’ attorney that plaintiff would move on Friday, the sixteenth day of that month, for an order, “relieving him from the order for judgment heretofore entered in said action on or about the twenty-ninth day of January, 1880, and the judgment heretofore rendered in favor of said defendant, Neumann and against said plaintiff, and setting the same aside on the ground that the same were taken and had against the plaintiff through his mistake, and also through his inadvertence and surprise, and his excusable neglect; and also for an order herein allowing the plaintiff to make and file herein an amended complaint, on the ground of mistake and inadvertence on the part of said plaintiff.”

It was claimed there was a mistake in drawing the note to secure which the mortgage was given, inasmuch as by the terms of the note it was provided that the same should draw interest at the rate of eight per cent, per annum until paid, “and if not so paid, then the interest to be added to and become a part of the principal sum, and thereafter bear a like interest.” The note was dated January 17, 1878, and was payable five years after date. The claim on behalf of plaintiff is that the mistake consisted in leaving out of the note the words: “the interest payable monthly in advance

On the affidavits filed in the case, the Court below set aside the final judgment on the demurrer and allowed the plaintiff to file an amended complaint. From this order, made after final judgment, this appeal is taken.

It is unnecessary for us to determine in the present case, whether such practice is to be sanctioned in any case, but assuming that the Court may, in a proper case, grant relief against a final judgment on demurrer, the circumstances attending the case in hand did not justify such action.

The mistake complained of was apparent on the face of the note, and was as clear on the day the note was executed, and at all other times thereafter, as it was when-application was made for leave to file the amended complaint. But, in addition to this, it appears from the affidavit of the plaintiff himself, made on the hearing of the motion, that plaintiff was informed of the mistake, and had his attention called thereto four months before the commencement of the action.

We think that the plaintiff failed to make out such a case of mistake, surprise or excusable neglect as justified the Court below in setting aside the final judgment on demurrer, and the order to that effect, as well as the order granting plaintiff leave to file an amended complaint is reversed.

Myrick and Sharpstein, JJ., concurred.