Exley v. Berryhill

• Decision Date: 08 July 1887
• Citation: 37 Minn. 182
• Parties: GEORGE J. EXLEY and Wife <I>vs.</I> CHARLES J. BERRYHILL, impleaded, etc.
• Court: Minnesota Supreme Court

37 Minn. 182

GEORGE J. EXLEY and Wifevs.

CHARLES J. BERRYHILL, impleaded, etc.

Supreme Court of Minnesota.

July 8, 1887.

Appeal by defendant Berryhill from a judgment entered upon his default in the district court for Ramsey county, Wilkin, J., presiding.

A statement of the case will be found in the report of a former appeal, 36 Minn. 117.

Williams & Goodenow and Berryhill & Davison, for appellant.

Warner & Lawrence and O. H. Comfort, for respondent.

DICKINSON, J.

The principal facts in this case, and our decision upon a former appeal in this action, may be found in 36 Minn. 117, (30 N. W. Rep. 436.) This is an appeal from the judgment.

1. The appeal by the defendant from the order of June 3d (allowing the defendant to answer notwithstanding his default, only upon the specified terms) was not effectual to stay all further proceedings in the action. An appeal from an order, the proper bond being executed, stays "all proceedings thereon." Gen. St. 1878, c. 86, § 10. But the entry of judgment was not a proceeding based upon or dependent upon the order appealed from. The appeal from the order was effectual to "save all rights affected thereby," (statute above cited;) and hence the subsequent proceedings taken were subject to be set aside for error in the order appealed from affecting such subsequent proceedings. This order was not erroneous, as was determined upon that appeal, and the validity of the judgment was not affected by the appeal. The other order appealed from was not appealable, and the appeal did not stay the entry of the judgment.

2. Upon default to answer a supplemental complaint which had been served, relief may be granted in accordance with the prayer of the supplemental complaint, although it be in excess of that sought in the amended complaint. While the judgment in this case is not, in some particulars, in the form specified in the prayers in the complaints, yet the relief granted is, in substance and in its legal effect, what was sought. It is not claimed that the slightest prejudice can result to the defendant from any irregularity in the form of the judgment.

3. It is urged that the judgment against the defendant Berryhill, upon his default, was rendered without proof being made of the allegations of the amended and supplemental complaints, and that this was error. The statute relating to the procedure upon default of the defendant (Gen. St. 1878, c. 66, § 210,) provides, first, for the entry of judgment "when, in an action arising on contract for the payment of money only, the summons has been personally served, and the plaintiff shall file with the clerk proof of the personal service of the summons, and that no answer has been received within the...