Becker v. Roothe

• Decision Date: 16 May 1959
• Docket Number: No. 41424,41424
• Citation: 339 P.2d 292,184 Kan. 830
• Parties: Charles BECKER, Appellee, v. Harold ROOTHE, Appellant.
• Court: Kansas Supreme Court

Page 292

339 P.2d 292

184 Kan. 830

Charles BECKER, Appellee, v. Harold ROOTHE, Appellant.

No. 41424.

Supreme Court of Kansas.

May 16, 1959.

Syllabus by the Court.

1. In a tort action for unliquidated damages where the defendant defaults in filing an answer, he does not admit the extent of the plaintiff's damages, and the plaintiff at the time default judgment is taken must prove his damages to the satisfaction of the trial court by the presentation of evidence, and it is held that a default judgment taken against a defendant without evidence as to the amount of damages having been introduced by the plaintiff is an irregularity under G.S.1949, 60-3007, Third, for which the defendant may proceed by timely motion to vacate and set aside said default judgment after the term at which it was entered in accordance with the applicable provisions in the code of civil procedure.

2. Where the trial court has jurisdiction of the subject matter of the action and over the parties, a judgment entered by the court is not void, however irregular or erroneous some of the court's proceedings may be, or voidable the judgment might be.

3. Where the defendant fails to appear or answer and the plaintiff seeks unliquidated damages by his action, an entry of judgment on default, without any evidence having been introduced to show the amount of damages sustained, is irregular and voidable, and sections of the code of civil procedure applicable to vacating a voidable judgment after the term at which it was entered, on the ground of irregularity on obtaining such judgment, are reviewed and construed as more specifically set forth in the opinion.

4. The provisions of G.S.1949, 60-3007, give the district court judicial power to determine the matters specified in the statute, but the district court is given no arbitrary powers therein.

5. An 'irregularity' within the meaning of G.S.1949, 60-3007, Third, authorizing vacation of a judgment for irregularity in obtaining it, is the want of adherence to some prescribed rule or mode of procedure, and consists either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it in an unreasonable time or improper manner.

6. Where an irregularity under G.S.1949, 60-3007, Third, is established by the stipulation of the parties, an order of the trial court denying an application to vacate and set aside a default judgment on the ground that it was irregularly obtained, without permitting or considering evidence tendered by the defendant as to the amount of damages or the validity of the defense under G.S.1949, 60-3012 and 60-3013, is arbitrary and erroneous.

7. Upon motion of a defendant to vacate a default judgment entered against him after term in which it was entered on the ground that it was irregularly obtained, upon facts and circumstances set forth in Syllabus par. 1, it is held the trial court at the hearing on such motion should have permitted the defendant to make a proper showing by evidence that the plaintiff was not damaged to the extent for which judgment was entered, and upon proper showing by the defendant, the trial court should then conditionally vacate the judgment and order the case set down for hearing upon the evidence as to the amount of damages, with the further order that unless the plaintiff should introduce his evidence and make a showing that he was damaged to the full extent of the judgment entered, as to which damages the defendant is entitled to defend, the judgment should be vacated, or at least modified in accordance with the evidence.

8. Upon the facts and circumstances disclosed in the foregoing syllabus the defendant is not entitled to offer proof of the validity of his defense upon the merits as a requisite to obtaining a trial upon the merits.

Jack O. Bowker, McPherson, argued the cause and was on the brief for appellant.

Russ B. Anderson, McPherson, argued the cause, and Archie T. MacDonald, McPherson, was with him on the brief, for appellee.

SCHROEDER, Justice.

This is an appeal from an order of the trial court refusing to open a default judgment on the ground that it was irregularly obtained.

An action for damages as a result of an intersection collision was filed on May 23, 1958. The defendant was personally served on May 27, 1958, and on June 24, 1958, one day after the answer was due, a motion for judgment on the pleadings was filed and a default judgment taken against the defendant in the total amount requested, $379.28 and costs. A praecipe for execution was filed October 6, 1958, the opening day of the following term, and on November 1, 1958, application to open the default judgment was filed by the defendant in the form of a motion stating that he had a meritorious defense to the plaintiff's cause of action. A full answer was attached and filed with the application. At the hearing on the application it was stipulated by counsel that no evidence as to the amount of damages was introduced at the time default judgment was taken. The trial court overruled the application to open the judgment on November 14, 1958, after hearing argument of counsel. It refused to admit or consider evidence tendered as to the amount of damages or the validity of the defense. Appeal was duly perfected from this order.

Two questions are presented:

'(1) Was there an irregularity in obtaining judgment on default, there being no evidence introduced as to damages?

'(2) Was defendant entitled to offer proof of the validity of his defense as a requisite to obtaining a trial upon the merits?'

G.S.1949, 60-748, insofar as material herein, provides:

'Every material allegation of the petition not controverted by the answer, * * * shall for the purposes of the action be taken as true; * * * Allegations of value, or of amount of damages, shall not be considered as true by failure to controvert them; but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money only.' (Emphasis added.)

It was not until amendment in 1868 that the above statute was made inapplicable to actions on contract for the recovery of money by the addition of the last clause thereto. Prior to this time allegations as to the amount of damages were subject to proof on default in all actions. Early cases in which the foregoing statute was considered concerning proof of damages upon default by the defendant are Ames v. Brinsden, 25 Kan. 746; Union Pac. Ry. Co. v. Pillsbury, 29 Kan. 652; and Cole v. Hoeburg, 36 Kan. 263, 13 P. 275.

The defendant made default, and by his default admitted that everything stated in the petition was true, except the amount of damages. He admitted the plaintiff had a cause of action against him for some amount, ranging from a nominal sum up to $379.38. Defendant admitted that plaintiff ought to recover some amount from him, but the exact amount he did not admit. The amount of damages remained for the plaintiff to prove. Not having introduced any evidence at the time judgment was rendered, the judgment should have been entered for nominal damages only. The court, however, inadvertently and erroneously rendered judgment for the plaintiff and against the defendant for the total amount requested, $379.38, without any evidence having been introduced to show the amount of damages sustained.

G.S.1949, 60-3109, provides:

'If the taking of an account, or the proof of a fact, or the assessment of damages be necessary to enable the court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may, with the assent of the party not in default, take the account, hear the proof, or assess the damages; or may with the like assent refer the same to a referee or master commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury be ordered, it shall be on or after the day on which the action is set for trial.' (Emphasis added.)

It is mandatory under the foregoing statute that the plaintiff prove the amount of his damages. Uncle Sam Oil Co. v. Forrester, 79 Kan. 610, 100 P. 512. The applicable portion of the above statute to the facts presently before the court has been italicized, and the trial court should have proceeded under one of the three alternative provisions to assess the amount of damages before entering the default judgment. See Royse v. Grage, 138 Kan. 779, 28 P.2d 732.

At common law in an action at law where the defendant failed to appear or answer, the judgment may have been either interlocutory or final. If the amount to which the plaintiff was entitled was liquidated, judgment was given immediately for that amount. If, however, the amount was unliquidated, judgment was given that the plaintiff recover his damages to be assessed. The next step was the issuance of a writ of inquiry directing that a jury be summoned to ascertain the amount of damages due to the plaintiff, but the sheriff, and not the judge, presided over the jury in its task of ascertaining the damages. The common law was summarized in Raymond v. Danbury & Norwalk R. Co., 43 Conn. 596, Fed.Cas. No. 11,593, as follows:

'In 1765, the date of the publication of the first volume of Blackstone's Commentaries, the practice had become settled that upon a default, damages should be assessed upon a writ of inquiry, by a sheriff's jury, but 'a practice was established in the courts of King's Bench and Common Pleas, in actions where judgment is recovered by default upon a bill of exchange or a promissory note, to refer it to the master or prothonotary, to ascertain what is due for principal, interest and costs, whose report supersedes the necessity of a writ of inquiry.' 3 Bl. Comm., note 11 on p. 397. In 1848, before the enactment of the statute of 15 and 16 Vict., in regard to the ascertainment of damages by a master, in actions of contract, it is said, in Whitaker v. Harold, an action of covenant, 12 Jurist, 395, that the court of Queen's Bench had...