Gibbons v. Scott

Citations

• 15 Cal. 284

Syllabus

<p>In suit in equity, to set aside a judgment by default on a return by the Sheriff of personal service, on the ground that defendant, in fact, was not so served, and never had any notice of the proceedings, and that he had a valid defense to the action, the allegations relative to this defense showed that it was based upon an executory agreement, by the terms of which, certain things were to be done by plaintiff, and in consideration therepf, he was to be released from the debt for which the action was brought. Held, that the allegations are insufficient in this, that they do not state that any of these things were performed by him, or that he ever offered, or was, or has been, at any time, ready or willing to perform the same.</p> <p>Nor, in such case, will the Supreme Court reverse the judgment below, to afford plaintiff an opportunity to amend his complaint, he not having offered to amend below, and there being no error in the record.</p>