69 Conn. 440 | Conn. | 1897
This case was brought within the jurisdiction of the Superior Court by the claim for $5,000 damages, with which the complaint concluded. The previous allegation that the patent in controversy had been bought by the defendant at the price of $800, did not necessarily import that it was worth no more. Its value to the plaintiff, for aught that appears on the face of the complaint, or the loss sustained by the refusal to assign it, on request, may have been the full amount of the damages demanded.
The oral waiver of all claims for damages, made after the entry of the default, did not affect the question of jurisdiction. The complaint remained as it was before. It was not and could not have been amended by the waiver. Amendments of pleadings can only be made in writing.
The docket entry of this waiver originally read that all claims for damages were withdrawn. The court had power to allow its amendment so as to describe the plaintiff’s act as a waiver instead of a withdrawal. Whichever word was used, however, the legal effect would be the same; namely, that although an assessment of damages was still claimed in form upon the face of the record, it was, in fact, no longer desired.
The defendant came too late with his motion that Spring be cited in as a co-defendant. It was not filed until two years after the entry of his original default, and upon the eve of the trial, for which he had been contending. For this cause, its denial was fully within the discretion of the Superior Court.
The admission of the charter in evidence after the opening arguments, followed by a refusal to grant an adjournment in order to enable the defendant to present new testimony, constituted no ground of appeal. Opportunity to offer any evidence bearing on that thus introduced by the plaintiff was not' denied, and the court was under no obligation to go further.
The defendant contends that as the complaint described the plaintiff as a foreign corporation and did not allege that it had power to make the contract with him upon which the suit was predicated, it could make out no case, without the
Had the parties gone to trial on the general issue, this point would have been untenable. Rules of Practice, XXI, § 3,58 Conn. p. 588. The judgment by default deprived the defend-' ant of any right to plead. As the.Superior Court properly held, however, it did not, without more, entitle the plaintiff to the equitable relief which it claimed in its complaint. It was entitled to such relief only as might properly be awarded upon these claims, so far as it was able to make out, by satisfactory proof, the case which it had set up.
A default in an action for legal relief admits the material facts declared on as constituting a cause of action, and that, if these do constitute a cause of action, the plaintiff has a right to recover at least nominal damages. A default in an action for legal and equitable relief, followed by a waiver of all claims for damages, simpty establishes the plaintiff’s right to go forward and prove the matters he has alleged, unembarassed by any written pleadings on the part of the defendant, and with no other delays or formalities than such as may be deemed necessary to ensure' that equitjr shall be done. It does not under our practice, and it did not under the original practice in English chancery, entitle him to treat the matter of his complaint as confessed. 2 Swift’s Dig. * 253; Thomson v. Wooster, 114 U. S. 104, 110.
After a default, whether in a legal or an equitable action, a defendant has no absolute right to be heard as to the terms of the judgment, without leave of the court; although ordinarily a motion for such leave is treated as granted as of course, without any formal order. In this ease, the defendant was allowed to participate in the trial, and introduce evidence, as fully as if a general denial had been interposed. He could ask nothing more, and the rule that, upon an issue so formed, in a suit founded on a contract entered into with a foreign corporation, its capacity to make the contract is admitted, is fatal to his present contention. Proof of the
There is no error.
In this opinion the other judges concurred.