Reports of Cases Argued and Determined in the Supreme Court of the State of Montana from December Term 1868, to Volume 15
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1895 edition. Excerpt: ...for defendant to answer. Defendant had no occasion to defend against plaintiff's demands for the land in section 26, for defendant did not occupy or claim any land in section 26. But, when plaintiff wishes to change his pleading and judgment to cover land in section 25, then the defendant is materially affected as to a right upon which he has never had an opportunity to be heard, and as to which he has never defaulted. We base this line of reasoning, of course, upon our decision at the commencement of this opinion, that the particular description controls the general in the complaint. Such a material change as this cannot be made after default. This court said in Schuttler v. King (a portion of the decision in which the whole court agreed) as follows: "It is proper to note, also, that we think it a dangerous precedent to allow any material amendment of the complaint where default is made, and enter judgment without further service, according to such amendment. (Code Civ. Proc., 241,245." See, also, Barbour v. Briscoe, 8 Mont. 214; Foster v. Wilson, 5 Mont. 53.) We are of opinion that to allow such an amendment, as was proposed to be made in this case, would be wholly wrong. It would open the way to allowing a plaintiff to bring a defendant into court to answer one cause of action, and, if he got the defendant into a default, then to prove a wholly different cause of action against him. It is true, perhaps, that the matter of description in this case was a clerical error, but it was a substantial and material one. It went to the very anchorage of the whole description. It was quite as apparent in Foster v. Wilson, supra, that the error was a clerical one; yet in that case the court would not allow a judgment by...
- Paperback | 242 pages
- 189 x 246 x 13mm | 440g
- 13 Sep 2013
- Illustrations, black and white