120 P. 239 | Mont. | 1911
delivered the opinion of the court.
The plaintiff brought his action for a divorce, on May 23, 1908, alleging as ground therefor that defendant had been guilty of extreme cruelty toward him, persisted in for more than one year prior to the filing of the complaint, and of such a character as to destroy his peace of mind, to defeat entirely the proper and legitimate objects of the marriage, and to render the continuance of his marriage relation with defendant intolerable. The second paragraph of the complaint is the following: ‘ ‘ That the defendant has “been a resident of the state of Montana, county of Silver Bow, for more than one year next preceding the commencement of this action.” The defendant, having been personally served with summons, suffered default to be entered against her; and, on June 17, 1908, after hearing the plaintiff’s proof, the court granted a decree as prayed. On April 7, 1911, counsel for plain
When a notice of a motion is required, tbe adverse party is entitled to service of notice five days before tbe time appointed for tbe bearing, if both parties reside in tbe county where the court is held; otherwise be is entitled to service ten days before tbe bearing; and if tbe service is by mail, the time of service must be increased by one day for every twenty-five miles between tbe place of deposit and tbe place of service, provided tbe time shall in no case exceed thirty days. Tbe court or judge may in any case prescribe a shorter time. (Rev. Codes, sec. 7141.) Assuming, for present purposes, that tbe defendant was entitled to written notice of five days (Rev. Codes, see. 7145) — for it does not appear that both parties were not residents of tbe county — ■ we do not think that tbe order should be reversed, either because tbe statutory service of tbe notice was not made, or because the court ordered tbe time shortened. Tbe defendant did not
It is apparent that the use of the word “defendant” in the complaint was a clerical misprision, not only because the paragraph in which it appears is otherwise of no significance — for an allegation of defendant’s residence is not required — but also because the allegation of plaintiff’s residence for the required time within the state is a substantial element of plaintiff’s cause of action, essential to confer jurisdiction upon the court. (Rev. Codes, sec. 3674; Rumping v. Rumping, 36 Mont. 39, 91 Pac. 1057, 12 L. R. A., n. s., 1197.) The presence of the word “defendant” in the pleading cannot be accounted for on any other theory than that in drafting it counsel, or his scrivener, inadvertently substituted the wrong designation.
This brings us to the substantive question presented in defendant’s second contention, to wit: May a court correct such an error apparent upon the record, after judgment has been rendered on default and after six months subsequent to the entry of judgment? That this may be done in cases in which the defendant has appeared in the action and contested plaintiff’s claim, we have no doubt. The following cases are illustrative: Lamb v. St. Louis Cable & W. Ry. Co., 33 Mo. App. 489; Seeber v. Yates, 6 Cow. (N. Y.) 40; Brandt v. Albers, 6 Neb. 504; Hodge v. Sawyer, 34 Wis. 397; Sanford v. Willetts, 29 Kan. 647. It is also the rule that after default judgment must be rendered, if at all, upon the cause of action of which the defendant has had notice in the summons; that is, the one alleged in the original complaint.
Inasmuch as our statute contains no limitation, and authorizes an amendment to be made to.“any pleading or proceeding,” an
Incidentally counsel for defendant contends that, though the amendment might otherwise properly have been made, it is useless, because the complaint does not in any other respect state a cause of action. . While the pleading might have been open to attack by special demurrer, we do not think it so lacking in substantial averments as to be fatally defective.
The foregoing views are those of my associates. I do not approve them, except as to the disposition made of the matter of notice, and in so far as they define the authority conferred by the statute to make amendments. Under the authority of Rumping v. Rumping, supra,, the allegation of the plaintiff’s residence is substantial and necessary to give the court jurisdiction to proceed to decree in a divorce case. Though the error in the use of the word “defendant” is probably a clerical one, yet it cannot for this reason be corrected with any more propriety than could' the entire allegation of residence be supplied, though it had been omitted through inadvertence. To make the amendment in this case is to supply a jurisdictional fact, a necessary part of the plaintiff’s cause of action. This ought not to be done.
The order is affirmed.
'Affirmed.