232 P. 297 | Wash. | 1925
This is an appeal by the defendant Alberta Bowerman from a judgment of the superior court for King county, denying the prayer of her petition to modify and set aside the judgment rendered by default against her by that court in this action, in so far as such judgment is in terms binding upon her beyond the obligation of the community composed of herself and the defendant Milton Bowerman. The claim of relief here made by her is rested upon the theory that the judgment was, in legal effect, rendered in fraud of her separate rights, in that the complaint in the action did not state facts constituting a cause of action against her, other than stating facts constituting a cause of action against the community composed of herself and Mr. Bowerman.
In February, 1923, the plaintiff, Catherine Aid, commenced this action in the superior court for King county, her complaint therein reading as follows:
"Catherine Aid, Plaintiff, | vs. | "Milton Bowerman and Alberta Bowerman, his wife, | Defendants. |
"Plaintiff complains of defendants and for cause of action alleges:
"I. That during all the times hereinafter mentioned and included the defendants were and now are husband and wife.
"II. That heretofore, to-wit: on the 3rd day of November, 1920, at the special instance and request of the defendants, the plaintiff loaned to the defendants *321 the sum of Eleven Hundred Dollars ($1,100.00), which the defendants received from the plaintiff as a loan and in consideration thereof the said defendants promised and agreed to pay to the plaintiff the said sum of $1,100.00 in monthly installments of Fifty Dollars ($50.00) each beginning December 3, 1920, with interest on unpaid balances from time to time at the rate of 10% per annum.
"III. That the defendants have not repaid the said sum of $1,100.00 nor any part thereof nor any interest thereon, save and except that the defendants have paid interest on said sum up to August 3, 1921, and no longer; that by reason of the premises the defendants are justly and truly indebted to the plaintiff in the sum of $1,100.00, together with interest thereon at the rate of 10% per annum from August 3, 1921.
"IV. That at the time and place of the making of said loan, to-wit: on November 3, 1920, at Seattle, Washington, for the purpose of securing the repayment of said loan, the defendant Milton Bowerman, for and on behalf of himself and of the marital community then and now existing between the defendants, made, executed and delivered to the plaintiff a certain instrument in writing in the form of a memorandum of conditional sale, but which was intended by both parties to be a chattel mortgage, covering a certain Jumbo two and one-half (2 1/2) ton auto truck, No. 263, with a wood body painted gray, which said truck then and there was and still is the property of the defendants; that in and by the execution and delivery of said instrument it was the intention of the defendants to give to the plaintiff, and it was the intention of the plaintiff to receive from the defendants, security upon said truck for the repayment of said money, but through mutual mistake, misunderstanding and ignorance of the proper form of such instruments, the parties used a printed form of conditional sale contract to evidence their said intention instead of a proper form of chattel mortgage; that no note was given to evidence said debt.
"Wherefore plaintiff prays judgment against the defendants, and each of them, for the sum of Eleven Hundred *322 Dollars ($1,100.00), together with interest thereon at the rate of 10% per annum from August 3, 1921, and for the costs of this action; and that the aforesaid instrument in writing so executed and delivered by the defendant Milton Bowerman to the plaintiff as aforesaid be held, construed and adjudged to be a chattel mortgage upon the said Jumbo truck and that the same be foreclosed. . . ."
The defendants having been regularly personally served with summons in the action and having failed to answer or in any manner appear within the time prescribed by law, in April, 1923, judgment by default was by the court rendered against them; which judgment, after reciting due personal service upon the defendants, their default for want of answer and appearance, the plaintiff's waiver of her claim of foreclosure, and her motion for a personal money judgment against the defendants as prayed for, reads:
"It is ordered, adjudged and considered that Catherine Aid, the plaintiff herein, do have and recover of and from the defendants Milton Bowerman and Alberta Bowerman, his wife, and each of them, jointly and severally, the sum of One Thousand Three Hundred Ninety-five and 85/100 Dollars ($1,395.85), and the costs of this action to be taxed, . . ."
In July, 1923, Mrs. Bowerman filed her petition asking the modification and setting aside of the judgment in so far as it in terms is a judgment against her beyond the obligation of the community composed of herself and Mr. Bowerman. As presented to the superior court, and as here presented, our problem is, in substance, whether or not the plaintiff's complaint states a cause of action supporting personal recovery as awarded by the judgment against Mrs. Bowerman as well as against Mr. Bowerman and the community.
We do not fail to recognize the rule invoked by counsel for Mrs. Bowerman that a default judgment *323
cannot lawfully award relief in excess of the cause of action set up in the complaint, as has been held by this court in harmony with the rule generally prevailing in other jurisdictions. Bankof California v. Dyer,
Now, does this complaint, viewed in the light of these rules, state a cause of action for personal recovery as against Mrs. Bowerman beyond her liability as a mere member of the community? We have seen that the complaint alleges the loan of the $1,100 to have been made at "the special instance and request of the defendants;" that "said defendants promised and agreed to pay to the plaintiff the said sum of $1,100;" that "the defendant, Milton Bowerman, for and on behalf of himself and of the marital community," executed the instrument claimed to be a chattel mortgage to secure the loan. The use of the word "defendants" unqualifiedly, with reference to the making of the loan and the promise to pay the same, suggests a loan to, and a promise to pay by, both defendants. The allegation that no note was given to evidence the loan and promise, *324 tends to negative the thought that the promise was made by Mr. Bowerman alone; and herein is where this promise differs from the promise made by the husband alone signing the notes evidencing the obligations involved in Anderson v. Burgoyne and Bates v.Glaser, supra. The unqualified allegation of the loan to, and promise to pay the same by, the defendants, followed by the separate allegation of the security having been given by Mr. Bowerman in behalf of the community, suggests the thought that the complaint proceeds upon the theory that this was but the giving of community property security for a debt incurred by Mr. and Mrs. Bowerman and each of them. This, of course, could be done without in the least lessening the separate personal obligation of Mrs. Bowerman. In addition, we have the prayer for a personal money judgment "against the defendants and each of them."
Seeking to avoid our consideration of the language of the prayer, in aid of the ascertaining of the meaning of the language of the allegations in the body of the complaint, counsel for Mrs. Bowerman invoke the general rule that the prayer of a complaint is no part of the statement of the cause of action, citing:Meeker v. Gilbert, 3 Wn. Terr. 369, 19 P. 18; Smith v.Allen,
While a cause of action must be stated in the allegations of the complaint, when the allegations are in a measure ambiguous and susceptible of being construed as stating a cause of action as well as susceptible of being construed to the contrary, and it is plain that the allegations do not affirmatively show that the plaintiff cannot recover, as appeared by the allegations of the complaints in Anderson v. Burgoyne and Bates v. Glaser,supra, in so far as recovery against the wife personally was involved, it is not out of place to notice *325
the language of the prayer for relief, as an aid in ascertaining the meaning of the language of the allegations made to constitute the cause of action. We think there is nothing in our decisions above noticed negativing the view that the language of the prayer for relief may be looked to as an aid in the interpretation of the language of the allegations to this extent. Numerous authorities might be cited lending support to this view. From among the decisions containing observations in harmony with this thought we note the following: Keens v. Gaslin,
We conclude that the liberal rule of construction applicable to the determination of the question of whether or not the complaint constitutes a cause of action supporting a default judgment rendered thereon, calls for our holding that this complaint does state a cause of action against Mrs. Bowerman personally, as well as against her and Mr. Bowerman as members of the community; especially in view of the light thrown upon the allegations of the complaint by the language of the plaintiff's prayer for judgment, plainly giving Mrs. Bowerman notice that personal separate judgment would be claimed against her upon the allegations of the complaint, as well as against Mr. Bowerman and the community.
The judgment denying Mrs. Bowerman's prayer for modification and setting aside of the judgment is affirmed.
MAIN, C.J., PEMBERTON, BRIDGES, and TOLMAN, JJ., concur. *326
