Heinrich v. Englund

Mitchell, J.

Appeal from an. order denying a motion to vacate the judgment and dismiss the action. The grounds upon which the *396 motion was made were, in substance, (1) that the complaint did not state a cause of action; (2) that the clerk of the court had no authority to enter the judgment.

1. We think the complaint was good; certainly so after judgment. The expressions “account stated” and “to state an account” have a well-understood meaning. The allegations of the complaint that an account was stated between plaintiffs and defendant, and that upon such statement a certain balance was found due from the latter to the former, fairly mean that the parties had an accounting, and that the balance named was agreed on and admitted as the true balance between them. To allege a promise to pay this balance was unnecessary, and would really have added nothing to the complaint. It was sufficient to state the facts showing the duty to pay, without alleging the promise implied by law from these facts. Pom. Rem. § 538 et seq.; Bouslog v. Garrett, 39 Ind. 338 .

2. The complaint alleged a cause of action arising on contract for the payment of money only, and demanded judgment for a specified sum, but the summons contained the notice prescribed by the second instead of the first subdivision of Gen. St. 1878, c. 66, § 54. The summons and complaint were served together on defendant. On default of answer judgment was entered by the clerk without application to the court. Inasmuch as both summons and complaint were served together, we think the variance between the two was immaterial. The defendant could not have been misled by the form of the notice, as the complaint informed him of the nature of the cause of action and the amount for which judgment was asked. He could not have taken advantage of the variance, under the circumstances, even on motion. Brown v. Eaton, 37 How. Pr. 325 . The form of notice in the summons will confer no right upon a plaintiff to enter judgment without application to the court, when application is necessary by the form of the complaint; and, by analogy of reasoning, we think that when both summons and complaint are served, a plaintiff is entitled to judgment, without application to the court, notwithstanding the form of notice in the summons, when such application is unnecessary under the form of the complaint. But even if the plaintiffs in this case should regularly have applied to the court for judgment, their *397 failure to do so was an irregularity which did not prejudice defendant, for the reason that, under the complaint, plaintiffs would have been entitled to an order for judgment as a matter of course. Libby v. Mikelborg, 28 Minn. 38 .

3. In an action arising on contract for the payment of money only, where the plaintiff is entitled to judgment as a matter of course on default of an answer, the appearance of defendant does not entitle him to notice of the entry of judgment, any'more than in case of entry of judgment upon a verdict, finding, or report. Dix v. Palmer, 5 How. Pr. 233; Southworth v. Curtis, 6 How. Pr. 271 ; Leyde v. Martin, 16 Minn. 24 , (38;) Piper v. Johnston, 12 Minn. 27 , (60.)

Order affirmed.