Kittle v. Bellegarde

Citations

• 86 Cal. 556
• 25 P. 55
• 1890 Cal. LEXIS 1067

Syllabus

<p>Parties — Death of Plaintiff — Substitution of Executor—Notice to Defendants in Default — Amendment of Complaint—Judgment. — Upon the death of a plaintiff, his executor may he substituted as plaintiff upon ex parte suggestion and proof of the death, and no notice thereof to defendants in default is necessary. Such substitution does not require an amendment of the complaint, though all subsequent proceedings should he in the name of the substituted party; and a judgment in favor of the substituted executor is supported by the order of substitution, without any amendment of the complaint, or any service of the amendment upon any of the defendants.</p> <p>Id. — Order of Substitution — Judgment Roll — Amendment of Pleadings. — An order substituting a party is a part of the judgment roll, and is different from an order allowing a party to amend any pleading by adding or striking out the name of the party, in the respect that the substitution is made by the court, and necessitates no change of defense, whereas the amendment in respect to parties is only allowed at the instance of the party whose pleading is to he amended, and may require or admit of a different defense.</p> <p>Id. —Judgment by Default — Presumption upon Appeal.—Upon appeal from a judgment by default in favor of an executor, where neither the date of an ex parte order substituting the executor as plaintiff nor the date of the qualification of the executor is made to appear by the record, it is enough, to support the judgment upon appeal, that the order of substitution was prior to the judgment; and it must be presumed, in the absence of any showing to the contrary, that the order was made at a date which would justify the entry of default and the judgment by default, and that the defendants were actually in default before the rendition of the judgment.</p> <p>Id. — Vacating Default Judgment —Laches — Motion without Merit. — A motion to set aside the judgment by default is entirely destitute of merit, wh