Brown v. Bilton

34 Colo. 135 | Colo. | 1905

Mr. Justice Campbell

delivered the opinion of the court.

The defendant filed a motion to have the complaint made more certain, in which the request was for a rule on plaintiff to state the several credits on the note with their respective dates, the amount for which judgment is demanded, and'when the interest on the demand commences to run and is to be computed. At the same time a demurrer was filed upon the general ground that the complaint did not state facts sufficient to constitute a cause of action, and the specific ground that the complaint was uncertain and ambiguous in the particulars, which are, in legal effect, the same as those set out in the motion. The court overruled both the’ motion and demurrer, and the defendant having failed to answer within the time prescribed by rule, his default was entered, proofs were heard and judgment in plaintiff’s favor rendered for $1,448.25 and costs, and the defendant is here with his writ of error.

The complaint, which we have copied, speaks for itself. In all substantial respects it is as good as the complaint in the case of Rhodes v. Hutchins, 10 Colo. 258, which was sustained by this court.

It is first objected that the complaint does not state what became of the two payments made on the note. The averment is that they were made and credit therefor given. That is enough for defendant to know. It is no concern of his what disposition plaintiff made of the money, provided he got credit for it, as he did, in reckoning the balance due.

The prayer of the complaint is criticised because the plaintiff $rays for judgment for the face value or principal of the note, together with interest less the sum of $169.10, without naming the dates of payments. It is not necessary that such statemeuts be in the prayer. They already appeared in the body of the pleading. Indeed, the prayer is no part of the complaint, so far as any question raised here is concerned. The complaint alleges the execution and delivery by the defendant to the plaintiff of a note^ for a certain sum bearing interest at a given rate from a certain date until paid, and a copy of the note is inserted. Then follows an allegation that no part of the note has been paid except two certain sums. The time and amount of each payment are given. Demand and refusal are alleged. A perfect cause of action is here pleaded. From these allegations there is no' difficulty whatever in ascertaining by mathematical computation the amount due at the time of the trial.

There was no error in the record, and judgment is therefore affirmed. Affirmed.

Chief Justice Gabbert and Mr. Justice Steele concur.