FRANK ELDER v. A. SPINKS and J. D. B. COOK, 53 Cal. 293

By the Court, Crockett, J.: Four actions were consolidated and tried together, there being only one judgment in the whole. In the case of Elder v. Spinks, the summons was served on the defendant on the 17th of April, and on the 22d of April the complaint was amended, but no copy was served on the defendants, nor does it appear that they had notice of it. Having filed no answer, their default was entered, and judgment taken against them as on a default. The amendment, at the most, when read in connection with .the original complaint, constituted an amended complaint, filed “ of course,” in accordance with sec. 472 of the Code of Civil Procedure. That

section required such amended complaint to be served on the adverse party, with leave to the latter within . ten days to demur or to answer. The question whether the matter contained in the amendment is such as will materially affect the defendant on whomAt is not served, is immaterial. The default was irregularly entered’, and the decree following the default is erroneous. In the cases of Heath v. Spinks et als., and Daley v. Cook et als., the complaints were not verified, and the defendant J. D. B. Cook (who is the only appellant) filed answers containing a general denial of the allegations of the complaint.

At the trial, no evidence was offered in support of the complaint, in either action, and the Court, without evidence, rendered a decree for enforcing the lien on the land, but without a personal judgment against Cook. The complaints, after averring the performance of the work for which it is sought to enforce a lien on the land, allege that Cook has or claims some interest in the land, but that the same is subject to the plaintiff’s lien. The Court below treated the general .denial in the answer as equivalent to a disclaimer of Cook that he had or claimed any interest in the land. This was error.

The answer was only a denial of the issuable facts stated in the complaint, and the circumstance that Cook had, or claimed, some interest in the land was of itself wholly immaterial, except in so far as it showed that he was a necessary party to the action. But the averment that his interest was subject to the plaintiff’s lien presented a material issue, to which the answer was responsive. The answer, therefore, was not a denial that he had, or claimed, an interest in the land, but only of the fact that it was subject to the plaintiff’s lien.

We deem it unnecessary on the present appeal to notice the other points discussed by counsel, as the judgment must be reversed for the errors already adverted to. Judgment reversed, and cause remanded for a new trial. O 1 Remittitur forthwith.