Opinion
Civ. No. 2049.
May 19, 1917.
APPEAL from a judgment of the Superior Court of Alameda County. Everett J. Brown, Judge.
The facts are stated in the opinion of the court.
Amasa C. Smith, and Southard M. Modry, for Appellant.
Chas. Blum, and Jane Doe Blum, in pro. per., for Respondents.
In this action plaintiff asked damages in the sum of ten thousand dollars for an assault and a battery committed on him by the defendant, Jane Blum, who is the wife of the other defendant. Defendants defaulted, and application was made by the plaintiff to the court for the relief demanded in the complaint. The trial court gave judgment for the defendants. The case is here upon the judgment-roll alone. Findings were waived by plaintiff, and the evidence not being before this court it is unable to determine upon what facts the trial court acted. It does appear that the defendant, Jane Blum, and one other witness were examined. The defendants having defaulted, the hearing on plaintiff's application for judgment was governed, as is conceded, by subdivision 2 of section 585 of the Code of Civil Procedure, under which the only question before the trial court was that of damages. In the absence of both the evidence and findings this court must presume in support of the judgment that plaintiff, although assaulted, was not damaged. The plaintiff contends that, as all the facts alleged in his complaint Were admitted by the default, he was entitled to nominal damages and his costs; but a judgment for nominal damages would not have carried costs; and conceding, but not deciding, that the plaintiff was entitled to a judgment for nominal damages, this court will not reverse this case because of a failure of the trial court to find in favor of plaintiff for nominal damages only.
Judgment affirmed.