Galliano v. Kilfoy

Citations

• 94 Cal. 86
• 29 P. 416
• 1892 Cal. LEXIS 643

Syllabus

<p>Foreclosure of Mortgage — Judgment by Default — Supplemental Complaint — Covenant for Insurance — Appeal —Modification of Judgment. — Where the plaintiff, in an action to foreclose mortgages upon real property, has, upon notice to the defendant, obtained leave to file a supplemental complaint asking judgment under covenants contained in the mortgages for moneys paid out for the insurance of the property, a judgment obtained by default thereafter, without additional service of the supplemental complaint, is erroneous, and will be modified upon appeal to the extent of the relief granted upon the supplemental complaint.</p> <p>ID._Service of Summons — Variance of Name —Identity.—Where a defendant sued as “Rosa” Kilfoy has default entered against her by that name upon a return of service of summ'ons upon “Rose ” Kilfoy, described in the return as “one of the defendants,” the names will be considered as substantially the same, and the identity of the person served as one of the defendants is prima facie established.</p> <p>Id._Names — Idem Sonans. — The question whether one name is idem sonans with another is not a question of spelling, depending less upon the rule than upon the usage.</p> <p>Id. —Allowance of Attorney’s Fees — Review upon Appeal. —Where the record is not all before the appellate court, it cannot say that the attorney’s fee allowed to the plaintiff was unreasonable.</p>