200 P. 478 | Nev. | 1921
Lead Opinion
By the Court,
In this action appellant gave a note in payment for • a piano, and the note forms part of an instrument in writing wherein it was agreed, among other things, that respondent should hold title to .the piano until all sums agreed to be paid and any judgment therefor were paid. It was also agreed, in case action was brought on the agreement, or for the recovery of the piano, that appellant pay a reasonable attorney fee. .
A copy of the note and the agreements is attached to the complaint and made a part thereof. The prayer of the complaint is as follows:
“Wherefore plaintiff prays judgment against said defendant in the sum of $750, together with all accrued interest thereon from date thereof said note until paid, and for costs and disbursements of this action.”
Appellant interposed a demurrer to the complaint, which was overruled, and, on default of an answer, judgment was rendered against appellant for the balance due on the promissory note, to wit, $750, with interest, and the further sum of $100 as an attorney fee, and cost and disbursement of the action. It was also adjudged that respondent hold title to the piano until all sums of money mentioned in .the judgment were paid. The appeal is from the judgment.
Appellant contends .that, inasmuch as respondent demanded a money judgment only, the court had no authority to incorporate in.its judgment a provision that he hold title to the piano as security for the judgment. He also contends that, as an attorney fee was not included in the prayer of the complaint, the judgment, in so far as it awards an attorney fee, is invalid.
“The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the-issue.”
There was no answer in this case, and default was taken and judgment rendered by reason thereof. True, a demurrer was interposed, but the word “answer” as used in the section is not employed in a sense that can be held to include within its meaning a demurrer. This is apparent from the wording of the statute. Again, the statute is taken from the California code, and this construction has been placed upon the word “answer” by the supreme court of that state.
In the case of Buena Vista F. & V. Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386, the demurrers filed by the defendants were sustained, and plaintiff declined to amend. Final judgment was entered in favor of defendants. Discussing the case with reference to section 580 of the Code of Civil Procedure, which is identical in language with that part of section 299 quoted, the California court said :
“In cases where an answer is filed the court may, under section 580 of the Code of Civil Procedure, grant ‘any relief consistent with the case made by the complaint and embraced within the issue.’ But, we are not now dealing with such a case. Non constat, that any answer will ever be interposed here, and the question arises as to the sufficiency of the complaint standing alone and confronted by a demurrer — a case in which the demand of the complaint limits the relief. * * * ”
Section 96 of the Civil Practice Act, prescribing what the complaint shall contain, after enumerating the other parts, including a statement of the facts constituting the cause of action, concludes, by subdivision 3, as follows:
“A demand for the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated.”
The policy of this section is that the party instituting an action shall not only allege the specific facts constituting his cause of action, but shall state the specific relief to which he considers himself entitled. The purpose of subdivision 3 is to inform the defendant of the precise nature of the demand in order that he may be prepared to meet it. And the purpose of the first clause of said section 299, in cases where there is no answer, is to limit the relief granted to what the defendant is led to anticipate from the demand made in the complaint. The rule announced by this section is beyond doubt a fair and reasonable one.
As said by the court in Burling v. Goodman, 1 Nev. 316, in reference to a judgment taken by default:
“The defendant by his default admits the justice of the claim, and thus consents that judgment be taken against him for what is prayed for in the first instance. Whereas, if a greater sum or a different relief were demanded, he may appear and contest the claim as unjust and unreasonable.”
Counsel for respondent cites Marshall v. Golden Fleece M. Co., 16 Nev. 156, and quotes from the syllabus as follows:
“In such case defendants cannot complain because the relief granted exceeded the demand in the petition, if that which was granted was consistent with the case made, and was embraced within the issue.”
The case is not in point, for there was an answer to the complaint, and upon the trial it was treated as an
As the retention of title to the piano by the respondent as security for the judgment, and the award of an attorney fee therein, constitute a part of the relief granted, and were not included in the prayer of the complaint, the judgment is so far invalid.
“Being matter of purely special or exceptional recovery,” as said in Brooks v. Forington, supra, “and the defendant being entitled to look solely to the prayer in determining whether he will defend against the relief sought in the action, if such special relief is not therein specifically demanded, it is to be deemed waived.”
Entertaining these views, we are of the opinion that the judgment of the lower court must be modified by striking out the provision for an attorney fee of $100, and the provision that the respondent shall hold the title to the piano described in said contract until all sums of money are paid, and any judgment therefor is paid in full.
It is so ordered, and the judgment as modified will stand.
Dissenting Opinion
dissenting:
In the view I take of this record, it is not apparent to me that any injustice has been done the appellant by the judgment- against him for an attorney’s fee of $100, deemed and found by the court to be a reasonable allowance pursuant to the terms of the contract sued on.
If the defendant had not appeared at all, or had taken proper exceptions to the proceedings for the assessment of damages, he might now be heard to complain that the judgment rendered was for a sum greater than that demanded in the complaint; but having appeared and voluntarily proceeded with the trial of the only question to be judicially determined — the assessment of damages — without protest, objection, or taking any exceptions, he must now be held to have confessed the cause of action and plaintiff’s right to an attorney’s fee as incident thereto. This being the true situation, the appellant is in no position to urge upon this appeal for the first time that he was entrapped, ensnared, and deceived by the prayer of the complaint. Except for this contention the appeal is totally without merit. The only purpose of defendant’s appearance was to see that the court did not do the very thing it did do. The defendant having had his day in court, if he was dissatisfied with the assessment he should have moved the court for its correction, and if he desired a review of his objections they should be brought here by a proper bill of exceptions. 13 Cyc. 229.
Counsel for defendant are evidently of the opinion
By asking that the judgment be modified, appellant necessarily assumes that the departure from the prayer of the complaint was merely an irregularity that did not go to the jurisdiction. Chase v. Christianson, 41 Cal. 253. I am of the opinion that whatever of irregularity there may have been in the proceedings to ascertain the amount of the judgment to be rendered was waived by the action of the defendant himself (McClurg v. Hurst, 37 Mo. 144), and that no injustice has been done him by the allowance of an attorney’s fee. The judgment, therefore, in this respect should be affirmed.
I am, however, clearly of the opinion that the judgment, in so far as it directs that the title to the piano shall remain in the plaintiff until the judgment is paid, does not correctly pronounce the law of the case. The provision in the contract that title to the piano should remain in plaintiff until paid for was a condition solely for plaintiff’s security, which he could waive if he chose. Yori v. Cohn, 26 Nev. 228, 65 Pac. 945, 67 Pac. 212. The plaintiff, by bringing his action for the balance due on the purchase price of the piano, voluntarily waived the condition. By such election he treated the transaction as an absolute sale, and immediately upon filing of the complaint title to the instrument vested in the defendant as completely as though the .defendant had made full payment therefor. Waltz v. Silveria, 25 Cal. App. 720, 145 Pac. 169; George J. Birkel Co. v. Nast, 20 Cal. App. 651, 129 Pac. 945; Elsoma v. Moore, 11 Cal. App. 377, 105 Pac. 271. See Ann. Cas. 1917D, 464, note.
Rehearing
On Petition for Rehearing
Rehearing denied.