Northern Trust Co. v. Albert Lea College

• Decision Date: 06 May 1897
• Docket Number: Nos. 10,163 - (69).,s. 10,163 - (69).
• Citation: 68 Minn. 112
• Parties: NORTHERN TRUST COMPANY v. ALBERT LEA COLLEGE and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

68 Minn. 112

NORTHERN TRUST COMPANY v. ALBERT LEA COLLEGE and Others.¹

Nos. 10,163 - (69).

Supreme Court of Minnesota.

May 6, 1897.

Action by the Northern Trust Company against the Albert Lea College, its trustees, and all others interested in the property the mortgage on which is sought to be foreclosed. The court found that defendant college was indebted to plaintiff in the sum of $1,030, and also $200 for attorney's fee, and ordered judgment for the same and a sale of the mortgaged premises to pay the amount of the judgment

and the expenses of the sale. From a judgment entered in the district court for Freeborn county, pursuant to the findings and order of Whytock, J., defendant R. R. Abbott and the trustees appealed. Remanded, with directions.

Chas. E. Vanderburgh, for appellants.

Carman N. Smith, for respondent.

START, C. J.²

This is an appeal by defendant trustees from a judgment entered herein by default. The only alleged error which can be here reviewed is the one that the complaint and prayer for relief do not justify the judgment. If it appears from the face of the record that such is the case, the error may be reviewed and corrected on appeal from the judgment, for it was entered by and in accordance with the order of the trial court. White v. Iltis, 24 Minn. 43. "The relief granted to the plaintiff, if there is no answer, cannot exceed that which he has demanded in his complaint." G. S. 1894, § 5413; Prince v. Farrell, 32 Minn. 293, 20 N. W. 234. The reason and fairness of this statutory rule, which is practically the old equity rule, is obvious. The defendant by his default submits, without contest on his part, to the court, only the claim of the plaintiff for the relief prayed in the complaint. But if a different or greater relief were demanded, he might appear and contest it as unjust; hence the statute wisely limits the power of the court in awarding judgment by default to that asked for in the complaint, to the end that the defendant may safely omit to appear in cases where he is willing to submit to the court, without contest, the claim of the plaintiff to the specific relief invoked in his complaint. It necessarily follows, from the reason and object of the rule, that a defendant, by failing to answer, does not waive his right to have a judgment taken against him by default corrected and made to conform to the relief asked.

That the relief granted to the plaintiff by the judgment in this case was materially different and greater than that justified by the complaint and prayer for relief is manifest from a comparison of the complaint with the judgment. The allegations of the former and its prayer for the relief are, briefly stated, these: That on October 21, 1889, the defendant college executed to the defendant trustees its promissory notes for the aggregate sum of $15,000, twelve for $1,000 each, and six for $500 each, all payable in five years, with interest, and secured their payment by a mortgage to the trustees on real estate owned by it for the pro rata benefit and security of all of the holders of the notes; that all of the notes were sold before maturity and for value by the trustees for the benefit of the defendant college; that the plaintiff is the owner of one of the $1,000 notes, which is past due and unpaid; and that it is informed and believes that none of the promissory notes secured by the mortgage have been paid, and each and all of them are due and payable; that the plaintiff requested the trustees to foreclose the mortgage, which contained the usual power of sale, and provided for necessary attorney's fees for its foreclosure, not exceeding $200, for the benefit of the several holders of the notes, but the trustees refused so to do.

"Wherefore, the plaintiff prays that an account may be taken of the amount due on said mortgage debt, and that the said mortgage be foreclosed, and the defendants, Albert Lea College, and Horatio D. Brown, D. R. P. Hibbs, and Charles Kittelson, as trustees, be foreclosed of all equity of redemption or other interest in said mortgaged premises, and the property therein described be sold by the sheriff of Freeborn county, state of Minnesota, and the proceeds applied to the payment of said mortgage debt and the costs and disbursements of plaintiff in this action, and the sum of two hundred (200) dollars attorney's fees, as stipulated in said mortgage."

The summons was personally served on the trustees, and they did not answer. Thereupon the case was brought on for hearing ex parte, and judgment entered by direction of the court, adjudging a foreclosure of the mortgage and sale of the mortgaged premises for the exclusive benefit of the plaintiff, and excluding the defendant trustees and all of the other holders from all interest in the proceeds from a sale of the premises, and from all interest in the premises except...