Cook v. Pomeroy

The omission to enter the order on the decision of the demurrer under the circumstances was not irregular. The defendant by appealing from it has treated it as a subsisting and valid order. Besides, he kept it in his hands until a day or two before the final judgment was entered.

Neither was there any irregularity in the plaintiff’s entering a nolle prosequi to the second count.

But I think the judgment was irregular for two reasons:—

1. The appeal was pending, which operated as a stay of the plaintiffs proceedings upon the order overruling the demurrer. No undertaking -was necessary to give it that effect. It was an appeal from an order, and not from a judgment. I am aware *106this is a somewhat mooted question, but until overruled at general term I shall continue to hold that on an appeal from an order an undertaking is unnecessary to give the appeal the effect to stay the proceedings. (Emerson & Crocker agt. McBurney, 6 How. Pr. R. 32, Code, §§ 348, 349.)

2. The complaint was not verified, and there should have been notice of assessment of damages before the clerk or of the ascertainment by the clerk of the amount the plaintiff was entitled to recover.

Section 246 of the Code provides for the manner of obtaining judgment in all cases where the defendant fails to answer the complaint. This section contains three subdivisions ; the first of which is intended to provide for all cases of judgments in actions arising on contract for the recovery of money only, where the summons has been personally served on all or any of the defendants; the second for all other actions where the summons has been so served; and the third where the service of the summons was by publication.

The first subdivision in the first place contains a general provision, allowing the plaintiff to file with the clerk proof of personal service of the summons and complaint on one or more of the' defendants, or of the summons according to the provisions of ^ 130, and that no answer has been received; and declares that the clerk shall thereupon enter judgment for the amount mentioned in the summons against the defendant or defendants, or against one or more of several defendants in the cases provided for in § 136. Sections 130 and 136, referred to, • provide, the former that the complaint need not be served with the summons, &c., and the latter, among other things, for cases where the action is against several defendants, and the summons is served on one or more, but not on all of them.

The first part of the first subdivision of the section under consideration in its description of the class of cases to which it refers is sufficiently comprehensive in terms to embrace all ac-tions arising on contract for the payment of money only, whether the complaint be sworn to or not, and would include the present case, except for the subsequent qualification in the *107same subdivision, in which case no assessment would be necessary, and, as a matter of course, the clerk would be bound to enter judgmént for the amount claimed in the summons. The qualification in the first place applies to cases where the complaint is not sworn to, and the action is on an instrument for the payment of money only, and where the clerk, on production of the instrument, is to assess the amount due to the plaintiff thereon. So far it does not reach the present case, which, although the complaint is not sworn to, it is not on an instrument for the payment of money. But the subdivision proceeds to provide that in other cases the clerk shall ascertain the amount which the plaintiff is entitled to recover in the action from his examination under oath, or other proof, and enter the judgment for -the amount so assessed or ascertained. The question then arises, which are the other cases here mentioned 1 Clearly, as it seems to me, they are cases where the complaint is not sworn to, and the action is not on an instrument for the payment of money. In such cases the clerk shall ascertain the amount the plaintiff is entitled to recover, from his examination under oath or other proof, and enter judgment for that amount. By this interpretation the present case is embraced in the terms “ other cases.” The subdivision then concludes as follows:—

“ In case the defendant give notice of appearance in the action he shall be entitled to five days’ notice of the time and place of such assessment.”

This provision must be understood as applying to all cases where an assessment of the amount due the plaintiff is to be made by the clerk, and where he is to ascertain from the plaintiff’s examination under oath or other proof, the amount the plaintiff is entitled to recover. These are all cases where the complaint is not sworn to. This, I believe, is the construction which this subdivision of the section has uniformly received. (King agt. Stafford, 5 How. Pr. R. 30; Van Horne, President, &c. agt. Willis & Thomas, id. 238 ; Dix agt. Palmer, id. 234; Southworth agt. Curtis, 6 id. 271; Trapp agt. N. Y. & Erie R. R. Co. id. 237.)

*108I am aware the portion of the subdivision requiring the five days’ notice uses the words “ such assessment,” and does not in terms include the case of an ascertainment "by the clerk through the examination of the plaintiff or other proof of the amount due. But to limit its operation to cases upon an instrument for the payment of money only, would be absurd, and what in my judgment was never intended. It would exclude a very large class of cases where a notice is manifestly necessary and proper; indeed, far more so than in the single case of an action upon an instrument for the payment of money only. Nor is it any violation or forced construction of the language employed, to construe the clause in question as embracing all cases where the action is upon a contract for the recovery of money only, and where the complaint is not sworn to; in other words where there is to be an assessment or ascertainment of the amount in the manner mentioned. ■ Both are in fact ascertainments—both are assessments; and where notice of appearance has been given, and the complaint has not been sworn to, notice of assessment should be given in either case.

The whole of the first subdivision of the section in question relates to actions arising on contract for the payment of money only, where the defendant fails to answer; and its true construction, in my judgment, is, that in such cases, where the complaint is properly verified, notice of assessment or of ascertainment of the amount for which judgment is to be entered by the clerk, is never necessary ; and that in all such actions where the complaint is not verified, such notice is indispensable, where notice of appearance has been given on the part of the defendant, before he is in default for not answering; that in the latter class of cases-the only difference between an action on an instrument for the payment of" money only, and other actions on contract for the recovery of money only, is, that in the one case the clerk shall assess, or ascertain the amount due by computation merely,-and without proof, and in the other he must determine the amount from evidence, which may be the examination of the plaintiff under oath, or by other proof. The judgment must be set aside with ten dollars costs.