12 Mont. 149 | Mont. | 1892
Lead Opinion
This action was brought in the District Court of the First Judicial District of this State, in and for the county of Lewis and Clarke, to recover a balance alleged to be owing and due from defendant to plaintiffs on a promissory note. Plaintiffs allege in their complaint that during all the times mentioned therein plaintiffs were copartners, doing business under the firm name and style of Schuttler and Hotz, at Chicago, in the State of Illinois; that on the twenty-second day of January, 1885, said defendant King, and others, for a valuable consideration, executed and delivered to plaintiffs, in their said firm name as copartners, a certain promissory note of that date for the sum of $679.74, due on the thirteenth day of September, 1885, with interest after maturity at the rate of ten per cent per annum. Following the above averments is paragraph 3 of the complaint, which alleges: “That on the third day of January, 1887, the said J. E. King paid on said note the sum of $91.69; that no other sum or amount has been paid on said note, and. that there is now due and unpaid on the same from said defendant King, the sum of nine hundred and forty-nine dollars and forty cents ($949.40), principal and interest, to this twenty-seventh day of December, 1890.” The complaint further alleges: “ That plaintiffs are now the owners of said note, and entitled to receive the money due and unpaid thereon; that said plaintiffs, or either of them-, have not indorsed or transferred said note, but that the same since its maturity has been lost. Wherefore, plaintiffs demand judgment against said defendant for the sum of $949.40, principal and interest to date, and for his costs of suit.”
Said complaint was filed December 27, 1890, and summons appears to have been issued thereon the same day, and duly served upon said defendant King, personally, on the thirteenth day of January, 1891, in Lewis and Clarke County. The
On the 6th of July, 1891, the following order was made in said action by the court: “On motion court this day granted plaintiffs leave to amend complaint by interlineation; whereupon, on motion of said plaintiffs, court ordered that default of defendant be, and the same is hereby entered, and thereupon ordered that judgment be entered in favor of said plaintiffs, and against said defendant in the sum of $977.47, and costs in the sum of $9.10.” It appears that pui’suant to said order allowing amendment of the complaint, the third paragraph thereof was amended by adding to the total sum ($949.40)-therein originally stated as due on the twenty-seventh day of December, 1890, the amount of interest accrued on said note from that date to July 6, 1891, making said paragraph read, as amended: “ There is now due and unpaid on said promissory note the sum of $977.47, principal and interest to this sixth day of July, 1891;” and the demand for judgment in said complaint was amended accordingly, so as to demand judgment for the sum of $977.47.
No further service on defendant of the complaint as amended, or of the summons was made, but thereupon judgment by default was entered on said sixth day of July, 1891, against defendant King, for the recovery of said sum of $977.47, and costs, reciting the service of summons, and his failure to answer the complaint within the time required by law. It appears that execution was thereafter issued out of said court to enforce said judgment,.
The questions argued, and to be determined on this appeal are: (1) Is the summons, as issued and served in said action, sufficient as to the notice therein set forth, to authorize the entering of judgment by default therein? (2) Was the amendment of said complaint material, so as to entitle defendant to further service of process, or service of a copy of the complaint as amended?
First, as to the notice in the summons. In the case of Sawyer v. Robinson, 11 Mont. 416; 28 Pac. rep. 458, this court had occasion recently to consider and determine a kindred question. That case is cited by respondent, but it does not, in our opinion, have but slight bearing on the questions involved here. In that case it was held that the summons was not sufficient to support a default judgment. Why? Because the action was for the recovery of damages for an alleged tort, and not an action arising upon or growing out of any contractual relation between the parties; and the notice in the summons was to the effect that upon failing to answer, judgment by default would be taken against him for the amount of the alleged damages. As shown in that case, the statute provides that “in an action arising on contract for the recovery of money or damages only,” the notice shall be, that “unless defendant so appears and answers, the plaintiff will take judgment for the sum demanded in the complaint stating it” (§ 68, Code Civ. Proc.); and judgment in such an action may be entered on default of answer by the clerk of the court. (§ 245, Code Civ. Proc.) In that action, after much consideration, we held that where the action was not of the nature upon which judgment could be entered for the amount claimed and stated in the summons, as a matter of course,on default of answer — ■
Now, in the case at bar the question is just the converse of that determined in Sawyer v. Robinson, supra. Here the question is whether, in an action on contract for a specific sum of money, fully set forth in the summons as to the amount claimed to be due, is the notice in the summons sufficient if it states that the plaintiffs will apply to the court for the relief demanded in the complaint; and having applied to the court in such action, and obtained from the court a judgment in default of answer by defendant, for the amount stated in the summons, is that
The whole summons is in fact a notice to defendant. He is addressed with the notice that: “You are required to appear in an action brought against you by the above-named plaintiffs, in the District Court, .... to answer the complaint filed therein,” within the stated time, “or judgment by default will be taken against you according to the prayer of said complaint. The said action is brought to recover the sum of $949.40, principal and interest now due and owing to plaintiffs upon a certain promissory note of date January 22, 1885, made, executed, and delivered by the above-named defendant,” etc. Then follows a further notice that: “If you fail to appear aud answer said complaint as above required, the plaintiffs will apply to the court for the relief demanded.” Was this summons a notice to defendant of what judgment would be taken against him in case he failed to appear? If it was such notice the statute was fulfilled, for the only contention as to the summons is that it did not give him such notice, and all the stress in this argument is laid on the latter part of the summons, where it is said the plaintiff will apply to the court for the relief demanded. The defendant knowing the law, knew that if the party saw fit to apply to the court for said judgment, instead of taking a summary entry thereof' by applying to the clerk, such course was within the provisions of the Code, and that the court was forbidden, in the absence of answer, to enter a judgment exceeding the amount “demanded in the complaint.” (§ 241, Code Civ. Proc.) The action was brought to recover a stated balance alleged to be due on a certain described promissory note. Defendant knew that if any other judgment was entered it would be unsupported by the judgment roll. Although the Code provides for the entry of judgment in default of answer by the clerk, in an action to recover a stated sum of money due on contract, still there can be no question that the Code contemplates that a party may apply to the court in such action, instead of the clerk. (§ 241, Code Civ. Proc.)
The distinction between the case of Sawyer v. Robinson, supra, and this, is substantial. In the former the action -was for dam
There is no doubt respondent has at least apparent authority for his contention that the notice in the summons was defective in not stating that on failure to answer, plaintiff would take judgment for a certain sum, stating it, instead of saying he would apply to the court for the relief demanded in the complaint.
In Dyas v. Keating, 3 Mont. 498, the language of the opinion was strong to the effect that the requirements of the statute concerning the notice in the summons is mandatory, although in that case the point was not directly involved, for summons had been waived by the appearance. The early cases in California, relied on in Montana in questions of practice because of the similarity of the Codes, were also emphatic in the same ¡direction. So that the court below was not without apparent authority for making the order appealed from in this case. However we approached this inquiry as to whether the notice in the summons before us, taking it altogether, was sufficient, expecting to find respondent fortified on the negative of that question with more and stronger authorities than we have found on thorough investigation.
The only case cited by respondent which appears to be in point, is Ward v. Ward, 59 Cal. 141. In that case, as reported, the summons is not set out. It is, therefore, uncertain how much likeness there is between that and the case at bar, as to the matter stated in the summons, except that in both it is stated that the plaintiff will apply to the court for the relief demanded. As to that case, see also, Bewick v. Muir, 83 Cal. 368. In the case of Behlow v. Shorb, 91 Cal. 141, the action was on account for goods sold and delivered. The summons stated that “the said action is brought to obtain a judgment of said court for the sum of $2,843.25, with legal interest thereon from March 1, 1888, unpaid, alleged to be due plaintiff upon
The framers of the Code understood that slight irregularities or departures from its letter in these matters of practice would happen in the course of litigation, wherein acumen would find cause for objection, and seek thereby to overthrow all that had
Defendant was notified by summons personally served on him of the cause and nature of the action, the promissory note sued on, and the amount for which judgment was sought. He was notified to answer if he had any defense. From reading the summons it clearly appears that if defendant had executed said promissory note for said amount, with the other conditions stated in the summons, it was not even necessary for him to examine the complaint in order to know exactly for what amount judgment could be lawfully rendered against him in that action. Even conceding that there was a defect in the summons, still no one attempts to maintain that any substantial right was affected thereby; nor that the judgment entered was “for the twentieth part of one poor scruple” more than was due on the promissory note mentioned in the summons, for
unless defendant had a substantial defense, and if he had it was his duty and his privilege to appear in the action at the proper time and present it.
A.s to the amendment of the complaint, so as to enter judgment for the interest accrued on said promissory note from the date of commencing action to the time of entering judgment, said amendment we think was unnecessary. Upon the allegations as originally stated in the complaint, no doubt said interest could have been included in the judgment. But the summons did not notify defendant that the action was brought for anything more than $949.40. It stated nothing about any further accruing interest, and although plaintiff applied to the court, and the court caused to be entered judgment for no more than was due, according to the complaint, still we think it would be a dangerous precedent to allow judgment to be taken on default for a greater sum than mentioned in the summons, either by way of direct specific statement, or, if for interest, by stating the data upon which such interest would be cast. 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 and 245.) So that in this case, although the interest undoubtedly was shown to be due on the paper sued on, the judgment should be modified by reducing the same from $977.47, .as entered, to the sum of $949.40, as stated in the summons.
With such modification it follows that the execution and sale thereunder was for $28.07 more than should have been, as appears by the return set forth in the record. It will therefore be ordered that the appellants pay said excess of $28.07 to the clerk of this court, before remittitur is issued herein, and on receipt of said excess the clerk will cause the same to be paid to respondent, or his legal representative.
Order reversed.
Dissenting Opinion
(dissenting). — The statute provides, in reference to summons, as follows:—
“See. 68. The summons must be directed to the defendant, signed by the clerk, and issued under the seal of the court, and must contain : —
“ Fourth. In an action 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.”
The summons in this action contained the following notice: “And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiffs will apply to the court for the relief demanded in their complaint.-”
It is settled in this court that if the cause of action be one in which the plaintiff must apply to the court in order to obtain judgment that the summons must be what has become to be called a “relief summons” (§ 68, 5th div. Code Civ. Proc.), and that if the summons in such case simply notify the defendant that plaintiff will, upon default, take judgment in a given sum, it is insufficient. (Dyas v. Keating, 3 Mont. 495; Sawyer v. Robertson, 11 Mont. 416; 28 Pac. Rep. 456.) This is also true in States having code provisions similar to our section 68 of the Code of Civil Procedure. (Sweeney v. Schultz, 19 Nev. 53; Atchison etc. R. R. Co. v. Nichols, 8 Colo. 189; Brown v. Eaton, 37 How. Pr. 325.) But in the case at bar we have the converse of the proposition. The cause of action is upon a contract, a promissory note, for the recovery of money only. In such case the Code provides that, the notice in the summons shall be: “ That unless the defendant so appears and answers, the plaintiff will take judgment for the sum demanded in the
In King v. Blood, 41 Cal. 314, the question was not upon the nature of the notice in the summons, but rather upon the sufficiency of the description of the general nature of the cause of action. Bewick v. Muir, 83 Cal. 368, was upon the same point.
In Clark v. Palmer, 90 Cal. 504, the action was for relief, and not on contract for the recovery of money only. The notice in the summons was that “plaintiff will take judgment against you for the relief demanded in his complaint.” The court simply held that this was “in substance a notice that he would * apply to the court’ for that relief,” and hence the.notice satisfied the statute. The case did not hold that a “demand” notice was good in a “relief” cause of action, or vice versa.
The last California case to which my attention has been called is Behlow v. Shorb, 91 Cal. 141; 27 Pac. Rep. 546; but that case did not treat of the distinction between the two sorts of summons. The question was whether the summons stated the amount for which judgment would be taken in case defendants failed to appear. The court held that it did state the amount, so I do not find that the ruling in Ward v. Ward, supra, has been disturbed.
In Lyman v. Milton, 44 Cal. 630, it is said: “ Its form (the summons) is prescribed by law; and whatever the form may be it must be observed, at least substantially.”
' The doctrine of the California cases, and of Nevada and Colorada, supra, is that the provisions of the Code, in reference to the notice in the summons, are mandatory. This was also said in Dyas v. Keating, supra, and in Black v. Clendenin, 3 Mont. 48.
In Sidwell v. Schumacher, 99 Ill. 433, the court says: “ While there is some conflict of authority upon this subject, yet it is believed that the weight of authority establishes the proposition that where the law expressly directs that process shall be in a
Speaking of the distinctions between the two descriptions of causes of action, and the respective summons thereupon, this court said, in Sawyer v. Robinson, supra: “The notice .required to be in the summons is based upon the same distinction, and ought to be observed.”
The argument presented why a “relief” summons is sufficient on a complaint for the recovery of money, is this: That, in a money demand upon a contract, although the clerk may enter default and judgment, yet that power to so enter judgment is inherently in the court, and that if defendant is notified that plaintiff will go to the court to obtain his judgment, he cannot be misled to his prejudice. I notice in this connection, cited by appellant, Hemson v. Decker, 29 How. Pr. 385; Brown v. Eaton, 37 How. Pr. 325; McCoun v. N. Y. & H. R. R. R. Co. 50 N. Y. 176; Berry v. Bingaman (S. Dak.), 47 N. W. Rep. 825; Miller v. Zeigler, 3 Utah, 17. But in each of these cases it is to be noticed that they were decided under a practice requiring a copy of the complaint to be served on the defendant, and in each case a copy of the complaint was so served, and this fact was noted and relied upon in each decision, and in Brown v. Eaton, supra, the court deemed this fact of such importance to the decision that the words stating this fact are by the court italicized. McCoun v. N. Y. & H. R. R. R. Co. supra, was decided on the ground of the non-appealability of the order. But the court says: “ The plaintiff doubtless erred in making his summons as in an action upon contract, but as the mistake was cured by serving with it a copy of the complaint, the order of the court below should be affirmed, if the appeal is not dismissed. I am for a dismissal of the appeal.” So the court holds that the summons was irregular, but that it was cured by the service of a copy of the complaint. The Utah case, Miller v. Zeigler, supra, follows the New York eases; so with the South Dakota case, Perkins v. State. But serving a copy of the complaint is not the practice in this State, and the support, which the above cases have in the fact that a copy of
I am of opinion that under the tendency of decision, the summons was properly declared void.