13 N.M. 10 | N.M. | 1905
OPINION OE THE COURT.
“Upon a writ of error to reverse a judgment by default such defects in the declaration or complaint as could have been taken advantage of before judgment by general demurrer, may be brought under review. If the judgment would have been arrested on motion, if made because the declaration did not state facts sufficient to constitute a cause of action, it may be reversed for the same reason upon error.” See also Abbe v. Marr, 14 Cal. 210; Choynski v. Cohen, 39 Cal. 501.
This brings us to the main item sued for, the principal of the five bonds. Does the complaint set forth a cause of action as to this? From the bond attached and referred to in the complaint it appears that the bond sued on obligated the defendant company to pay the principal thereof on the first day of April, 1904. There is no provision for the earlier payment of the principal in the bond pleaded, and unless there is some adequate allegation to that effect in the complaint it is manifest that there was upon the pleadings nothing clue on the principal when this suit was brought in February, 1903, that it was as to that item prematurely brought, that the complaint in this respect states no cause of action, and that it is the duty of this court equally so to declare in this proceeding as upon demurrer. Turning to the complaint it will be noted that while there are detailed statements as to the time of the falling due of the interest installments of October, 1901, April, 1902, and October, 1902, showing $45 due on that account, there is absolutely no allegation showing that the principal was due at the filing of the suit except the following :
3 “Plaintiff alleges that by reason of the failure of said company to pay said interest coupons when due, and by reason of their failure to have paid any part of the same for over six months last past, and for over six months last past since their presentation at the place designated for payment, that both the principal and interest on said bonds are now due and pavable, and thereby the defendant is indebted to this plaintiff in the sum,” etc.
It is insisted by appellee in his brief that this allegation taken as true and aided by what was presumably adequate proof, is sufficient to sustain the judgment for the principal. It should be noted here, however, before proceeding to the question of pleading that if the latter be insufficient no proof, however ample, can justify a judgment. The measure of the right to recovery is what is alleged. It is to this that the defendant was summoned to respond and the most satisfactory proof of the right to recover, in so far as it overlaps the allegations, is absolutely valueless to sustain the judgment. Thus in Hall v. Jones, 3 Tex. 305, it is said:
“Facts not alleged though proved cannot form the basis of a decree or judgment. That a judgment has been taken by default does not dispense the rule which requires that the proofs shall conform to the allegations and that the latter must be sufficient to constitute a legal basis on which to predicate the judgipent. To maintain a judgment b3 default the petition must set forth a cause of action with substantial accuracy and with sufficient certainty, to inform the country what judgment to render, without looking for information to proofs not within the allegations.”
For the reasons stated the judgment of the court below will be reversed and the case remanded for further proceedings in accordance with this opinion.