Haggin v. Lorenz

15 Mont. 309 | Mont. | 1895

DeWitt, J.

— The facts set out in the statement preceding this opinion all appeared upon the hearing of the motions by the district court. It may also be conceded that it fully appeared that all parties to the litigation understood that the same was in reference to the ground actually occupied by the defendant in said section 25; also that it was first discovered that the complaint and judgment described ground in section 26 after the writ of restitution had been issued. But we are of opinion that we cannot decide this appeal upon what the parties understood was the description of the premises in the complaint. We think that we should examine that description as it is.

The plaintiff contends that the complaint fairly shows that the ground described and sought to be recovered was in fact in section 25. This we cannot concede. - The parcel is described in the first place as a portion of the southwest quarter of section 25, but the description at once goes on to say, “more particularly described as follows to wit”: and then comes a surveyor’s accurate and technical description by courses in minutes and seconds, and by distances in feet. This description places the ground wholly and clearly out of section 25, and as wholly and clearly in section 26. Such particular description as the latter must control the general description which precedes it. (Goodrich Lumber Co. v. Davie, 13 Mont. 76; Largey v. Sedman, 3 Mont. 357.

Then we have this situation: the complaint and judgment and writ describe one piece of land, and the plaintiff’ after the default of the defendant, wishes to amend these records by inserting a description of another piece of land. This is certainly a material amendment. We think that we need not stop to fortify this statement by argument or by authorities. The plaintiff wishes to make this material amendment and still hold his default against the defendant. When the defendant got into default plaintiff was asking possession of a piece of ground in section 26. Now, by seeking to amend, plaintiff wants a piece of ground in section 25, and this without an opportunity for defendant to answer. Defendant had no occasion to defend against plaintiff’s demands for the land in section 26, for defendant did not occupy or claim any land in section 26. But, when plaintiff wishes to change his pleading and judgment to cover land in section 25, then the defendant is materially affected as to a right upon which he has never had an opportunity to be heard, and as to which he has never defaulted. We base this line of reasoning, of course, upon our decision at the commencement of this opinion, that the pariicu-lar description controls the general in the complaint. Such a material change as this cannot be made after default. This court said in Schuttler v. King (a portion of the decision in which the whole court agreed) as follows: “It is proper to note, also, that we think it a dangerous precedent to allow any material amendment of the complaint where default is made, and enter judgment without further service, according to such amendment. (Code Civ. Proc., §§ 241,245.” See, also, Barbour v. Briscoe, 8 Mont. 214; Foster v. Wilson, 5 Mont. 53.)

We are of opinion that to allow such an amendment, as.was proposed to be made in this case, would be wholly wrong. It would open the way to allowing a plaintiff to bring a defendant into court to answer one cause of action, and, if he got the defendant into a default, then to prove a wholly different cause of action against him. It is true, perhaps, that the matter of description in this case was a clerical error, but it was a substantial and material one. It went to the very anchorage of the whole description. It was quite as apparent in Foster v. Wilson, supra, that the error was a clerical one; yet in that case the court would not allow a judgment by default in ejectment to stand, which gave to the plaintiff premises “easterly” from a certain point, when in his complaint he had demanded premises “westerly” from said point.

We have not the slightest hesitation in affirming that the district court was wholly right in denying the application to amend the complaint, the judgment and the writ of restitution, and in recalling the writ of restitution.

It did not appear anywhere in the case that the plaintiff requested to make his amendments upon allowing the defendant to come in and answer thereto. The orders of the district court are affirmed.

Affirmed.

Pembertost, C. J., and Hunt, J., concur.