The Thomas Manufacturing Company, a Corp. v. Erlandson
| Citation | 155 N.W. 652,32 N.D. 144 |
| Decision Date | 26 November 1915 |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Adams County, Crawford, J.
Affirmed.
E. C Wilson, for appellants.
Defendants had the right to demur, under the leave of the court granted them to serve answer; answer means to plead over. They were entitled to notice of the motion to strike their demurrer. Rev. Codes 1905, §§ 7330, 7335, Comp. Laws 1913 §§ 7950, 7955.
Defendant's demurrer should have been sustained, and therefore it was not frivolous. Friesenhahn v. Merrill, 52 Minn. 55, 53 N.W. 1024.
A demurrer should not be stricken out where there is room for debate as to the sufficiency of the pleading to which demurrer is directed, or where an attorney of ordinary intelligence might have interposed a demurrer in good faith. Hatch & E. Co. v. Schusler, 46 Minn. 207, 48 N.W 782; Dunnell's Minn. Dig. Pl. No. 656; Olsen v. Cloquet Lumber Co. 61 Minn. 17, 63 N.W. 95; Jaeger v. Hartman, 13 Minn. 55, Gil. 50; State v. Torinus, 22 Minn. 272; Perry v. Reynolds, 40 Minn. 499, 42 N.W. 471; Hurlburt v. Schulenburg, 17 Minn. 22, Gil. 5; Morton v. Jackson, 2 Minn. 219, Gil. 180.
Striking a demurrer as frivolous is in effect the same as overruling it after argument, and in either event the demurrant should be allowed to plead over. Friesenhahn v. Merrill, 52 Minn. 55, 53 N.W. 1024; Dunnell's Minn. Dig. Pl. 657; Malone v. Roby, 62 Wis. 459, 22 N.W. 575; Diggle v. Boulden, 48 Wis. 477, 4 N.W. 678; Potter v. Holmes, 74 Minn. 508, 77 N.W. 416.
The corporate existence of the plaintiff should have been alleged, and the omission of such allegation is fatal. Further, two distinct causes of action cannot be pleaded as one. Rev. Codes 1905, § 7361; Bliss, Code Pl. §§ 246, 258; State v. Chicago, M. & St. P. R. Co. 4 S.D. 261, 56 N.W. 894.
In actions to recover the value of services or property, there must be an allegation of the value of same. Jasper v. Hazen, 2 N.D. 401, 51 N.W. 583; Maxwell, Code Pl. p. 88; Elliott v. Caldwell, 43 Minn. 357, 9 L.R.A. 52, 45 N.W. 845; Hewitt v. Brown, 21 Minn. 163; Dean v. Leonard, 9 Minn. 190, Gil. 176; Starkey v. Minneapolis, 19 Minn. 203, Gil. 166; Gaar, S. Co. v. Fritz, 60 Minn. 346, 62 N.W. 391.
"The statement of indebtedness is but a conclusion of law." Bliss, Code Pl. 335, citing Lienan v. Lincoln, 2 Duer, 670; Bowen v. Emmerson, 3 Ore. 452; Pom. Code Rem. 544; Moore v. Hobbs, 79 N.C. 535; Foerster v. Kirkpatrick, 2 Minn. 210, Gil. 171; Holgate v. Broome, 8 Minn. 243, Gil. 209; Keller v. Struck, 31 Minn. 466, 18 N.W. 280; Bowen v. School Dist. 10 Neb. 265, 4 N.W. 981.
The term, "there is now due and owing," in such an action as this one, is but a conclusion, and not a statement of any fact. Pioneer Fuel Co. v. Hager, 57 Minn. 76, 47 Am. St. Rep. 574, 58 N.W. 828; Stephens' Pl. § 53, and note; Penn Mut. L. Ins. Co. v. Conoughy, 54 Neb. 123, 74 N.W. 422.
Boehm & Jackson, for respondent.
Default judgment cannot be set aside without an affidavit of merits and the showing of a good defense on its face. Black, Judgm. § 324; Hingtgen v. Thackery, 23 S.D. 329, 121 N.W. 839; Whitbread v. Jordan, 1 Younge & C. Exch. 303, 4 L. J. Exch. in Eq. N. S. 38; Doyle v. Teas, 5 Ill. 250; Minnesota Thresher Mfg. Co. v. Holz, 10 N.D. 25, 84 N.W. 581; Wheeler v. Castor, 11 N.D. 347, 61 L.R.A. 746, 92 N.W. 391; Braseth v. Bottineau County, 13 N.D. 344, 100 N.W. 1082; Racine-Sattley Mfg. Co. v. Pavlicek, 21 N.D. 222, 130 N.W. 228; Johannes v. Coghlan, 23 N.D. 588, 137 N.W. 822.
Notice to an attorney who has appeared is notice to his client. Melms v. Pabst Brewing Co. 93 Wis. 153, 57 Am. St. Rep. 914, 66 N.W. 518; Point Pleasant v. Greenlee, 63 W.Va. 207, 129 Am. St. Rep. 971, 60 S.E. 601.
A writ attested on the first day of the month and made returnable on the first Monday of said month is not void. If it is sufficiently clear that a person of ordinary intelligence could read and understand the date actually meant, it is sufficient. Culver v. Brinkerhoff, 180 Ill. 548, 54 N.E. 585; Greenleaf v. Roe, 17 Ill. 474; Scales v. Labar, 51 Ill. 232; Constantine v. Wells, 83 Ill. 192; Powell v. Clement, 78 Ill. 20.
Where a movant fails to show any defense, and it clearly appears that the demurrer was filed for delay, no relief will be granted. Curry v. Janicke, 48 Kan. 168, 29 P. 319; Day v. Mertlock, 87 Wis. 577, 58 N.W. 1037; 3 Am. & Eng. Enc. Law, § 286.
Defendant's appearance and taking part in the motion to reopen the default was in effect an argument on the original motion for judgment, and constituted notice. Gray v. Gates, 37 Wis. 614; Grantier v. Rosecrance, 27 Wis. 488.
If there was any irregularity in the original motion to strike the demurrer, it was waived by such after appearance, motion, and argument. Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Henry v. Henry, 15 S.D. 80, 87 N.W. 522; Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151; Kirschner v. Kirschner, 7 N.D. 291, 75 N.W. 252.
The joining of several causes of action does not necessarily render a complaint demurrable. Randall v. Johnstone, 20 N.D. 493, 128 N.W. 687; 31 Cyc. 117; 23 Cyc. 376; Rev. N.D. Codes 1905, § 6870; Larson v. Great Northern R. Co. 108 Minn. 519, 121 N.W. 121; Dickerson v. Hamby, 96 Ark. 163, 131 S.W. 674; Cone v. Ivinson, 4 Wyo. 203, 33 P. 31, 35 P. 933; 6 Enc. Pl. & Pr. 386; Erickson v. Child, 87 Minn. 487, 92 N.W. 1130; Wyckoff, Seamans & Benedict v. Bishop, 98 Mich. 352, 57 N.W. 170.
A plainly frivolous demurrer will be stricken out. Morgan v. Harris, 141 N.C. 358, 54 S.E. 381.
On the 5th day of August, 1913, the defendant Erlandson was personally served with the summons and complaint in this action. The complaint reads as follows:
The plaintiff complains and alleges:
I. For a first cause of action that the plaintiff is a corporation duly organized and existing under and by virtue of the laws of the state of Ohio.
II. That the defendants, O. A. Erlandson and A. Erlandson, are copartners, doing business under the fictitious firm name and style of the Erlandson Lumber Company, with their main office in the village of Hettinger, Adams county, North Dakota.
III. That on or about the 10th day of August, 1910, the plaintiff and the defendants herein entered into an agreement and contract in writing by which the plaintiff agreed to sell and deliver and the defendants agreed to purchase and accept 60 Thomas grain drills, said drills to be delivered to said defendants between the 1st day of January, 1911, and the 20th day of September, 1911.
IV. That thereafter by mutual agreement between the plaintiff and the defendants herein, and before the delivery of the said grain drills, said agreement or contract was modified wherein the plaintiff agreed to deliver and the defendants agreed to accept 45 Thomas grain drills to be delivered to said defendants at the same time as above specified for the said 60 grain drills.
V. That between the 11th and the 20th days of January, 1911, pursuant to the said contract and agreement the plaintiff delivered to the said defendants the said 45 Thomas grain drills, amounting in all to the sum of three thousand eight hundred fifty-nine dollars ($ 3,859), and in addition thereto at the same time certain extras for said drills amounting to the sum of sixty-five dollars ($ 65), amounting in all to the sum of three thousand nine hundred twenty-four dollars ($ 3,924), no part of which has ever been paid except as hereinafter stated, the same being long past due.
VI. For a second cause of action, the plaintiff alleges the foregoing preliminary statement of facts, and further alleges that between the 20th day of January, 1911, and the 19th day of August, 1911, the plaintiff sold and delivered to the said defendants at their special instance and request certain repairs for the said drills amounting in all to the sum of two hundred forty-seven and 39/100 dollars ($ 247.39), no part of which has ever been paid except as hereinafter stated, the same being now past due and payable.
VII. For a third cause of action herein the plaintiff alleges the foregoing preliminary statement of facts, and further alleges that on or about the 2d day of March, 1911, at the special instance and request of said defendants, the plaintiff sold and delivered to said defendants certain hay tools and implements amounting in all to the sum of six hundred twenty-eight dollars ($ 628), no part of which has ever been paid except as hereinafter stated, the same being past due and payable.
VIII. That there is now due and owing to the plaintiff from the said defendants on account of the above and foregoing causes of action the sum of four thousand seven hundred ninety-seven and 39/100 dollars ($ 4,797.39), less the sums of one thousand seven hundred thirteen and 25/100 dollars ($ 1,713.25), credits allowed defendants for cash paid during the months of February, April, and June, 1911, and October, 1912, together with storage for one year on certain machinery of said plaintiff now in charge of the defendants, together with interest thereon at the rate of 8 per cent per annum according to said agreement from and after November 1, 1911.
Wherefore, plaintiff demands judgment against said defendants and each of them for the sum of three thousand eight-four and 14/100 dollars ($ 3,084.14), together with interest thereon at the rate of 8 per cent per annum from and after November 1, 1911, with its costs and disbursements.
On the 12th day of September, E. C. Wilson, a member of the bar of this state, filed his general appearance on behalf of both of the defendants. At the same time he...
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