Block v. Kearney

Citations

• 6 Cal. Unrep. 660
• 64 P. 267
• 1901 Cal. LEXIS 1228

Syllabus

<p>Judgment.—Where on a Motion to Set Aside a Judgment there is no affidavit of .merits, the ground of mistake and excusable neglect cannot be considered.</p> <p>Forcible Entry—Setting Aside Judgment.—Under Code of Civil Procedure, section 475, providing that the court must disregard any error or defect which does not affect the substantial rights of the parties, the fact that a summons in unlawful detainer alleges that plaintiff seeks to recover the amount claimed “in U. S. gold coin,” while the complaint prays only for an ordinary money judgment, is not .ground for setting aside a judgment entered in. accordance with the prayer of the complaint, since the error is immaterial and could not harm the defendant.</p> <p>Forcible Entry—Service of Process.—Under Code of Civil Procedure, section 416, providing that, when a summons in unlawful detainer is served by a person other than the sheriff, it must be returned with an affidavit of service by such person, it is not necessary that it should appear that the party making the service did so at the request of the plaintiff or his attorneys.</p> <p>Unlawful Detainer,—Where a Judgment in Unlawful Detainer Purports to have been rendered in open court, it cannot be attacked by an affidavit of counsel that it was in fact rendered in the judge’s chambers, adjoining the courtroom, the door being open between the rooms.</p> <p>Unlawful Detainer.—Where, in an Action of Unlawful Detainer, Plaintiff has recovered by way of penalty three times the amount of rent due, it would not be proper to also allow Mm damages for a frivolous appeal.</p>