Holman v. Vallejo

Citations

• 19 Cal. 498

Syllabus

<p>Where, in suit to enforce a verbal contract for the sale of land—the complaint averring a balance of four hundred dollars to be due defendant when he should make a deed, and describing the land by its position with reference to adjoining tracts—a demurrer was put in, and being overruled, and defendant not answering, final judgment, by default, was entered for plaintiff—evidence being taken as to the contract before a referee—that plaintiff pay defendant three hundred dollars, the latter to make a deed of the land, which was described in the judgment by metes and bounds : Hdd, that the judgment is erroneous, both as to the amount adjudged due defendant and in describing the land by metes and bounds ; that the judgment should have followed the complaint in both these particulars, and that the departure is material and fatal.</p> <p>The judgment must be reversed, even though the evidence taken before the referee shows the land described in the complaint and judgment to be the same. The evidence was taken ex parte, and defendant has a right to be heard—the subject matter being the establishment of the actual boundaries of land.</p> <p>On the return of the cause, plaintiff can either take judgment in accordance with the allegations of the complaint, or amend by inserting a more specific description of the property.</p>