11 Mont. 416 | Mont. | 1892
This is an action for damages for the alleged wrongful taking and conversion of personal property.
The points insisted upon by appellant in this appeal are that the summons issued and served upon him in this action is defective on the grounds set forth in the motion to quash, hereinafter referred to, and that the complaint does not state facts sufficient to constitute a cause of action.
The action was brought in the District Court within and for Gallatin County, and the plaintiff alleged, as the facts constituting his cause of action, (1) that “ on the eighth day of May,
The portions of the summons which appellant criticises as insufficient, and not in conformity with law, read as follows: “ The said action is brought to recover the sum of one hundred and fifty dollars, the value of thirty tons of ice belonging to said plaintiff, and taken possession of and disposed of by said defendant on or about the twelfth day of May, 1890, at the city of Bozeman, State of Montana; also for all costs of suit. And you are hereby notified that, if you fail to appear and answer said complaint as above required, the said plaintiff will take judgment against you for the sum of one hundred and fifty dollars and costs of suit.”
It does not appear from the record what action, if any, was taken on said motion to quash the summons. That portion of the proceedings was probably not brought here, because it is no part of the judgment roll, where judgment is entered on default of defendant. (§ 306, Code Civ. Proe.) Judgment was taken for the sum of one hundred and fifty dollars and costs, upon the default of defendant. This appeal, being from the judg
1. We think the summons is sufficient in its statement of the “cause and general nature of the action,” as contemplated in section 68 of the Code of Civil Procedure. But as to the notice contained in the summons, it will be seen, when looked at in connection with the cause of action stated in the complaint,, that such notice is not in conformity with the requirements of said section. The statute (§ 68, Code Civ. Proc.) provides; “Fourth, in actions arising on contract for the recovery of money or damages only, a notice that unless the defendant so appears and answers, the plaintiff will take judgment for the sum demanded in the complaint, stating it. Fifth, in other actions, a notice that unless defendant so appears and answers^ the plaintiff will apply to the court for the relief demanded in the complaint.”
Now, it is clear that this is not “ an action arising on contract for the recovery of money or damages.” It is clearly an action for the wrongful or tortious taking and conversion of the personal property alleged to belong to another. The cause of action arose, according to the complaint, not by virtue of any covenant or agreement, or contractual relations existing between the parties, but by the commission of a tort. (2 Sedgwick on Damages, 492; Cooley on Torts, 2.) The remedy for such an injury lies in the application of principles of law, which have been aptly termed, by an eminent and discriminating jurist, “non-contract law.” (Bishop’s Non-Contract Law, 396.) It is true, as argued by respondent’s counsel, that where the goods of one are wrongfully taken and converted by another, the party aggrieved may waive the tort, treat the taking as rightful, and sue as on contract for the value of the goods. (Cooley on Torts, 2; Bishop’s Non-Contract Law, §§ 72-78.) But in the case at bar no such action is brought. This action is for damages for the wrongful taking and conversion of the prop
The distinction between actions arising on contract for the ¡recovery of money or damages only and other actions is so plain it does not require professional knowledge to perceive it. And the distinction made in the notice required by statute appears to be an important one in the mind of the framers of the Code, because by section 245 it is provided that, where no answer is filed within the time required, “in an action arising upon a contract for the recovery of money or damages only, .... the clerk, upon the application of the plaintiff, shall enter the default of defendant, and immediately thereafter enter judgment for the amount specified in the summons, including costs. .... In other actions, if no answer has been filed with the clerk within the time specified in the summons, or such further time as may have been granted, the clerk shall enter the default of the defendant;” and thereafter the plaintiff may apply to the court for the relief demanded in the complaint. It is to be observed that by this statute in the one class of actions the clerk may enter the default and judgment, while in the other the clerk enters the default, but the plaintiff must apply to the court for the relief demanded in the complaint. The notice required to be in the summons is based upon the same distinction, and ought to be observed.
2. It is contended by appellant that the complaint fails to state a cause of action. The complaint might have been held sufficient if the defendant had appeared and answered, and a trial been had, because its defects might have been cured by such proceedings. But it has no such aid, and, standing alone, is fatally defective in not showing by its allegations that the plaintiff was the owner of the property described at the time the
It is ordered that the judgment be vacated and set aside at the cost of respondent, and that he be granted leave to amend his complaint, and otherwise proceed in said action as provided by law.
Judgment vacated*