Pearce v. Butte Electric Railway Co., 109 P. 275

Pearce v. Butte Electric Railway Co.

109 P. 275 | Mont. | 1910

MR. JUSTICE SMITH

delivered the opinion of the court.

This is the second appeal in this case. (See 40 Mont. 321, 106 Pac. 563.) The present appeal is from the judgment here*307tofore entered against the defendant. It is now contended that the complaint does not state facts sufficient to constitute a cause of action, for the reason that, while there is an allegation therein to the effect that the defendant is a corporation, there is no averment showing where or under what law its corporate capacity was established. The second contention is that the court erred in.rendering judgment, for the reason that there is no prayer in the complaint for any relief or for any judgment.

1. Both propositions are extremely technical. In so far as the first is concerned, we think it is without merit. The complaint does aver that the defendant is a corporation. This allegation is sufficient to show that it had the legal capacity to be sued. We think this is all that is required. It would seem to be unnecessary for the plaintiff to inform the defendant of the place of its incorporation. It must of necessity be better informed on that point than is he.

2. The last paragraph of the complaint reads as follows: “That, by reason of the premises, plaintiff has been injured and damaged in the sum of two thousand ($2,000) dollars, and his costs herein necessarily expended.” Our attention is called by appellant’s counsel to section 6713, Bevised Codes, which reads as follows: “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other ease the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.” It is argued that where there is no answer on file, as in this ease, there must of necessity be a prayer for judgment, otherwise there can be no judgment entered. Numerous cases are called to our attention by the learned counsel, which are supposed to sustain their contention; • but we think the better rule to be adopted in this state is that, if there be in the complaint language showing the limits of plaintiff’s claim, so that the defendant may not be misled, such an allegation serves the same practical purpose as a formal prayer for judgment and is sufficient. (See Tuolumne County Water Co. v. Water Co., 10 Cal. 194; Paige v. Barrett, 151 *308Mass. 67, 23 N. E. 725; Butts v. Phelps, 90 Mo. 670, 3 S. W. 218; Garmany & Son v. Savannah G. Co., 80 Ga. 578, 7 S. E. 104.) In the case at bar the defendant was informed of the amount of damages which plaintiff claimed to have sustained, to-wit, $2,000. After the default of the defendant was entered, the court proceeded to hear evidence on behalf of the plaintiff and ordered judgment in the sum of $1,000. We think that the only reasonable interpretation which may be placed upon the allegation quoted is that the purpose of the action was to recover damages in a sum not exceeding $2,000. It cannot be thought that the action was commenced for any other purpose or without purpose.

The judgment appealed from is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.