Mahlstadt v. Blanc

Citations

• 34 Cal. 577

Syllabus

<p>Jurisdiction of District Court—Equitable Action—Voluntary Appearance of Parties.—Pl.aintiff sued defendant in Justice's Court to recover eighty-five dollars and forty-one cents for a street assessment in San Francisco, and recovered a personal judgment for the amount claimed. Defendant appealed to the County Court, wherein plaintiff filed a written complaint in the usual form employed in such cases, except the prayer, which was for a personal judgment only. ° To this complaint defendant answered by a general traverse. The cause was then transferred to the District Court, wherein on the trial—at which defendant appeared without objection of any kind—plaintiff had judgment, by which it was adjudged that plaintiff have a lien on the lot of defendant to secure the amount found to be due, and ordering a sale of the lot in satisfaction of the debt; but there was no personal judgment. In the record brought up by defendant on an appeal from the judgment alone, there is an amended complaint entitled in the District Court which contains a prayer for judgment as rendered, but the transcript contains no evidence that this amended complaint was ever filed in that Court, or any Court, or that any answer thereto was ever filed, or that a default was entered for want of an answer. In this Court no motion was made to strike out this amended complaint or to correct the record. Held, first, that defendant is estopped from denying that said amended complaint was filed in the District Court—that the presumption is it was filed, but through some inadvertence of the Clerk it was not so indorsed, or that the indorsement has been accidentally omitted from the transcript : and second, that, as the relief demanded in the amended complaint and awarded by the judgment was equitable in character, and as the defendant voluntarily appeared and went to trial in the District Court, without objection either to its jurisdiction or to said amended complaint, the Court acquired lawful jurisdiction to