Whipple v. Mahler , 215 Minn. 578 ( 1943 )

¹ Reported in 10 N.W.2d 771. This is an appeal from an order of the district court denying defendants' motion to vacate and set aside a default judgment. It is also an appeal from the judgment.

1. There are two assignments of error with reference to the judgment, one by each defendant, identical in form, and stated in general terms, viz.: "The court erred in entering and docketing the judgment in favor of respondent and against appellant * * *." No specific grounds of error are set out. Under these assignments defendants attempt to argue that the complaint did not state a cause of action against either and that parties and actions were misjoined. They also argue that the judgment was improperly entered without order of the court. Obviously, the assignment of error is too broad and general in its terms to raise these questions, each of which should have been assigned specifically. As well said in Dunnell, Minn. Practice, § 1793: "Each assignment must be single, concise, certain and complete in itself * * * An omnibus assignment is unavailing; counsel must put his finger on the specific error."

2. Even if plaintiff's treatment of the argument should be considered a waiver of proper assignments of error, the result must be adverse to defendants. The question whether there is a misjoinder of parties must be raised by answer or demurrer. Misjoinder of causes must be demurred to or it is waived. 5 Dunnell, Dig. Supp. § 7508. It cannot be raised for the first time on appeal from the judgment.

3-4. The complaint, which was all the clerk had before him, obviously states a cause of action against each defendant. It alleges, in substance, that in a divorce action in which defendants were adversaries the court adjudged that defendant William pay plaintiff $100 in addition to $25 previously ordered paid. This adjudication, which was sought by defendant Evelyn for this plaintiff's benefit, was a conclusive determination in that suit of the reasonable value of this plaintiff's services. Therefore, that determination becameres judicata as to both parties as to the value of plaintiff's services, and defendants are estopped to challenge its amount. Where, as here alleged, the court required direct payment to the attorney, he is a beneficiary of the adjudication and may sue as for a liquidated amount. The fact that the complaint also alleged the reasonable value of the services cannot be taken advantage of for the first time on appeal. Dunnell, Minn. Pleading (2 ed.) § 911. While it is the primary obligation of the husband under such a decree to pay the fees adjudicated, nevertheless the reasonableness of the value of the services rendered must be determined, and if there is a promise by the wife to pay for them, express or implied from the request to perform them, the reasonable value is determined by the decree, and, in the absence of agreement to the contrary, she is estopped to challenge it.

5. On the question of irregularity in the entry of judgment, since the suit was upon an adjudicated liability, the clerk properly entered judgment as upon a suit for a liquidated sum.

6. Moreover, it was originally held by this court that it would not consider an irregularity of procedure in the assessment of recovery in the entry of judgment upon default unless the aggrieved party had moved the trial court for relief. Babcock v. Sanborn, 3 Minn. 86 (141). This case was reversed in Reynolds v. La Crosse Minn. Packet Co. 10 Minn. 144 (178). The reversal was based largely upon the views expressed by Chief Justice Emmett in Babcock v. Sanborn,supra, and upon the strict construction of the statute given by this court in the Reynolds case which empowered this court to reverse, affirm, or modify the judgment or order appealed from. Pub. St. 1849-1858, c. 71. As to matters of irregularity in procedure where the remedy in the trial court is expeditious and more effective than could be given in this court, we prefer to follow the rule originally established in Babcock v. Sanborn, which held that in such procedural matters, where adequate and expeditious relief could be obtained by motion in the trial court, an appellant would not be heard to raise the question in this court unless he had first applied to the trial court for relief by motion to set aside or vacate the judgment and for a reassessment of the damages or unliquidated sums claimed in the action. The court in the Babcock case followed the New York practice. It said (3 Minn. 89[145):

"* * * But it is quite evident, from the provision of the constitution creating this court (Const. Art. VI, § 2), that it is designed as a court of review, for the correction of errors submitted by inferior tribunals, and is not to exercise original jurisdiction, except where it is conferred by law; we will therefore not entertain questions which have not received the actual decision of the tribunal from which they come, unless it is quite evident that substantial error has been committed, and adequate relief cannot be had from the court below. In the case of Karns v. Kunkel [2 Minn. 268 (313)], decided at the December term of 1858, we held that a writ of error would lie to a judgment entered upon default, and that where the record disclosed that there was no cause of action against the defendant, we would reverse it. But because the statutes (Minn. Stat. (New Ed.), p. 621, § 2, and p. 623, § 22) allow all final judgments to be brought into this court by appeal or writ of error, it does not follow that we are bound to entertain questions which may appear on the record, where the court below had adequate power to give the relief sought, had the party seen fit to apply to its jurisdiction.

"We have frequently held that all questions of error committed by clerks in the taxation of costs, must, in the first instance, be corrected by the court below on motion; we now decide that errors committed by them in the assessment of damages, whether by miscalculation of figures, or the erroneous application of principles of law, are subject to the same practice."

Any other doctrine would be out of harmony with the administration of expeditious justice. If this court were to entertain such a question upon appeal, it could, upon reversal, only send the case back to the trial court for a proper assessment of the recovery. That a defaulting defendant could consume time by taking an appeal to this court in a matter involving merely procedure, where a prompt and efficacious remedy could be had in the trial court, does not impress us as having been within the contemplation of the legislature when it enacted the statutes relative to this court's powers on appeal. We do not think it intended to impose any such requirement as that indicated in the Reynolds case,10 Minn. 144 (178). We therefore overrule it insofar as it pertains to such procedural matters, and we reinstate the rule of Babcock v. Sanborn, 3 Minn. 86 (141). The defendants, not having sought relief in the trial court for the clerk's alleged irregular action in entering the judgment, will not be heard upon that question here.

7. Defendants characterize their motion as one to vacate the judgment. In reality it is not a motion to vacate, but one to open the default judgment. Being a motion to open rather than to vacate the judgment, it was addressed to the discretion of the trial court. 3 Dunnell, Dig. Supp. § 5108.

Defendants concede the service of the summons and complaint upon them, attempt to excuse their failure to appear or answer on the ground of inadvertence, furnish affidavits of merits and proposed answers, and ask that the judgment be vacated and set aside. If they are entitled to have the judgment opened and to be allowed to answer, it is solely upon the grounds of excusable neglect. They were served with the summons and complaint at a time when they were engaged in moving from their home in Monticello to a farm near Hanover, Wright county. Each defendant in his affidavit presented to the trial court in support of the motion stated: "That the said summons and complaint was mislaid in the confusion of moving and this affiant inadvertently failed to interpose an answer in said action. That affiant did not again recall such service until the sheriff of Wright county informed affiant that an execution had been issued to him in said action." This is the entire ground upon which the relief is sought. Neither defendant asserts any other excuse. They do not assert that there was any misapprehension as to the character or effect of the papers served on them. They had had at least one case in court in which the plaintiff had performed the services for which he now seeks to recover. The showing made is one only of forgetfulness, which may have been due to the fact that the parties to the divorce action had remarried.

The case before us comes squarely within the rule laid down in Moot v. Searle, 165 Minn. 308, 206 N.W. 447, wherein it was held that mere forgetfulness is not excusable neglect. There the trial court had refused to open a judgment. The defendant's showing of forgetfulness was supplemented by the statement that he did not suppose that a summons could be served in the way it was served. Here we have no such complication, and the forgetfulness stands alone. We find no abuse of discretion in denying defendants' motion to open the judgment.

8. Defendants also assert that the summons did not appear as "the first paper seen upon opening and inspecting the face of the papers served," in compliance with District Court Rule 13(d), (Mason St. 1940 Supp. p. 1756). Neither defendant claims to have been misled by the improper arrangement of the papers.

The judgment and order are affirmed.