75 Neb. 37 | Neb. | 1905
This action was brought by George P. Elmen, as administrator of the estate of Robert Stewart, deceased, to recover damages for the tvidow and next of kin on account of the death of his intestate, which he alleges was caused by the negligence of the defendant railroad while the deceased was working in its Havelock shops. Stewart died on July 18, 1899. Soon after his death his supposed widow, Annie Stewart, was appointed special, and afterwards general, administratrix of the estate, and acted as general administratrix until the present administrator was appointed on April 15,1901. While this woman was acting as admihis
Apparently the motion for a new trial was granted and the judgment complained of Avas rendered for the reason that the district court was of the opinion that the action was barred by the statute of limitations; and this for the reason that the summons, as first issued, bore no indorsement of the amount for which the plaintiff would take judgment if the defendant failed to appear. We have repeatedly held that no judgment can he rendered in excess of the amount indorsed upon the summons in case of default in an action where the only relief sought is a money judgment. Crowell v. Galloway, 3 Neb. 215; Roggencamp v. Moore, 9 Neb. 105; Cooperative Stove Co. v. Grimes, 9 Neb. 123; Forbes v. Bringe, 32 Neb. 757. The plaintiff in error contends that the amendments to the
If the first position is correct, the latter is wrong. The holdings are clearly irreconcilable. This court, however,' in an early case, pointed out the proper procedure and indicated the effect of such an amendment. In Watson v. McCartney, 1 Neb. 131, the action was to enforce a vendor’s lien upon certain lands. The summons was indorsed with the notice required in cases where a judgment for money only is sought. The defendants did not appear, and the indorsement was by leave of court amended so as to conform to the nature of the action, and judgment was rendered accordingly. In that case as in this both the praecipe and the summons were defective as to indorsement. In the opinion Judge Lake says:
“Ho well am I satisfied that this amendment was irregular and unwarranted, that I have not undertaken to look into the cases, relating to amendments cited by counsel for the defendant in error. Although cases might be found to support such a proceeding I should deem it unwise, in the settlement of the practice Avhich is to govern in the courts of this state, to conform to precedents of that character. * * * Had the defendants appeared, the amendment might have been made by order of the court. The office of the notice indorsed on the summons is to advise the defendant of the amount claimed. He then is at liberty to consent or resist. * * * The plaintiff’s course Avas to take judgment for the amount indicated in the notice, Avitli interest from April 1, 1897. If he desired a further or greater recovery, he should have obtained leave and issued another summons, such as Avas proper in the case.” See also Reliance Trust Co. v. Atherton, 67 Neb. 305; Atchison, T. & S. F. R. Co. v. Nicholls, 8 Colo. 188, 6 Pac. 512.
In the instant case the summons was issued in all respects in conformity Avitli the praecipe Avhich Avas filed, and in conformity Avith laAV. It is not a case Avhere an error has been made by a clerk of the court or other officer. In
• It is a significant fact that the plaintiff did not rely upon the amended praecipe and summons to bring the defendant into court, but procured the issuance and service of a new summons, fixing the answer day at a future date. Taking this fact into consideration, we conclude that the action was begun, so far as the liability for the ' amount indorsed upon the summons is concerned, at the
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.