Schuttler v. King

• Decision Date: 24 May 1892
• Citation: 30 P. 25,12 Mont. 149
• Parties: SCHUTTLER et al. v. KING.
• Court: Montana Supreme Court

30 P. 25

12 Mont. 149

SCHUTTLER et al. v. KING.

Supreme Court of Montana

May 24, 1892

Appeal from district court, Lewis and Clarke county; HORACE R. BUCK Judge.

Action by Peter Schuttler and others against J. R. King on a promissory note. Plaintiffs obtained judgment, after which there was a motion to vacate and set aside the judgment. This appeal is prosecuted by the plaintiffs from an order granting the said motion. The judgment is modified and affirmed, and the order appealed from reversed.

Thos C. Bach, for respondent.

HARWOOD J.

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 & Hotz at Chicago, in the state of Illinois; that on the 22d 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 13th day of September, 1885, with interest after maturity at the rate of 10 per cent. per annum. Following the above averments is paragraph 3 of the complaint, which alleges "that on the 3d day of January, 1887, the said J. R. 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 and 40/100 dollars, ($949.40,) principal and interest, to this 27th 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 13th day of January, 1891, in Lewis and Clarke county. The parts of the summons which relate to the questions discussed on this appeal read as follows: "You are hereby required to appear in an action brought against you by the above-named plaintiffs, in the district court of," etc., "and to answer the complaint filed therein within," etc., "or judgment by default will be taken against you, according to the prayer of said complaint. That said action is brought to recover the sum of $949.40, principal and interest now due and owing to plaintiffs upon one certain note of date January 22, 1885, made, executed, and delivered for a valuable consideration by the above-named defendant and Wheatly Bros. to the said plaintiffs. 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 the complaint." 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 pursuant 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 27th 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 6th 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 summons, was made, but thereupon judgment by default was entered on said 6th 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, and levied on land of defendant King, situate in Park county, this state, and the same was sold thereunder on the 9th day of November, 1891. Thereafter, on the 2d day of December, 1891, notice of motion to vacate and set aside said judgment, setting forth the grounds thereof, was duly served, and filed in said court; and on the 3d day of December, 1891, said motion was by the court granted, and an order entered vacating and setting aside said judgment. Thereupon plaintiffs prosecuted this appeal from said order.

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. Robertson, 11 Mont. --, 28 P. 456, this court had occasion recently to consider and determine a kindred question. That case is cited by respondent, but it does, 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 failure to answer, judgment by default would be taken against defendant 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," (section 68, Code Civil Proc.;) and judgment in such an action may be entered on default of answer by the clerk of the court, (section 245, Id.) 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,--that is, in an action where the plaintiff must apply to the court for the relief demanded, and where no authority is given by statute to enter a judgment for the amount claimed as a matter of course, on default,--the summons, which gave notice that on failure to answer plaintiff would take judgment for the stated amount, was insufficient. There appear to be substantial reasons for this holding, which are readily perceived, and which the statute has recognized. In an action arising on contract for the recovery of money or damages only the parties have fixed the conditions between themselves by contract, which furnishes the basis for the recovery. That is the only class of actions in which the statute appears to permit a strictly default judgment to be entered against the defendant "for the amount specified in the summons." This judgment may be entered by the clerk, on application by the plaintiff. But such a summary judgment, taken in an action not of that class, appears to be without authority of law. Section 245, Id. It was important that in the great variety of actions not arising on contract, among which was the case of Sawyer v. Robertson, supra, the summary entry of judgment on default for the amount claimed should not be made, but the plaintiff should apply to the court for the relief demanded; and the statute so provides. It was said, considering these conditions, that the statute thus providing was mandatory. It should be so held, for the reason that in actions other than those for the recovery of money or damages arising on contract the defendant has in law the substantial right that the court shall be applied to for the relief demanded, and have the same measured out by the court, instead of having judgment summarily entered for the relief demanded.

Now, in the case at bar the question is just the converse of that determined in Sawyer v. Robertson, 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 judgment subject to be set aside on the ground that the notice in the summons does not fulfill the requirements of section 68 of the Code of Civil Procedure? The whole summons is in fact a notice to defendant. He is addressed with 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...