Opinion
December, 1893.
M.A. Lesser, for plaintiffs (appellants).
No appearance for respondents.
While we agree with plaintiffs' counsel in his contention that the cause of action herein is clearly one to recover damages for fraud or deceit, we think that, if a request was made, the justice properly refused to insert a direction in the judgment that the defendants are liable to executions against their persons, because the judgment is wholly unsupported by evidence.
Section 2891 of the Code (which section 1347 of the Consolidation Act expressly makes applicable to District Courts) prescribes: "If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case." Subdivision 2 of section 1383 of the Consolidation Act is substantially to the same effect. The only exception to this requirement is where an action is brought to recover upon or for the breach of a contract, express or implied, the plaintiff may serve upon the defendant, with the summons, and in like manner, a copy of a written complaint, verified in like manner as a verified pleading in the Supreme Court. In that case, unless the defendant files a written answer, verified in like manner, denying one or more material allegations, or, generally, each allegation of the complaint, or setting forth new matter constituting one or more defenses or counterclaims, the justice must render judgment in favor of the plaintiff for the sum claimed in the complaint, with costs, without putting the plaintiff to any proof. Code Civ. Proc. §§ 3126, 3207; Consol. Act (Laws 1882, chap. 410), §§ 1346, 1383, subd. 1.
It seems to follow from these statutory requirements that the justice is not authorized to render judgment in one of the actions specified in subdivisions 1 and 2 of section 2895 of the Code (the latter includes actions for fraud or deceit), nor in any other action except to recover upon or for the breach of a contract, express or implied, unless the plaintiff puts in his proofs of the cause of action alleged.
The judgment in the case at bar having been rendered merely upon a verified complaint, without any proofs having been taken in support of the cause of action alleged, our conclusion is that such judgment was improperly entered.
The attention of counsel is directed to the justice's return, which fails to show that the justice, upon request made to him, refused to embody in the judgment a direction of the character prescribed by section 1394 of the Consolidation Act, or that an exception was taken to such refusal. These considerations alone would be sufficient to cause a denial of the relief sought by the plaintiffs on this appeal, but in view of the error made by the justice in rendering judgment without taking proofs to establish the allegations of the complaint, we think that the judgment should be reversed, and the case remanded to the court below for its proper disposition thereof, but as the defendants have not appeared in this court, nor in the court below, there should be no costs to either party.
BISCHOFF, J., concurs.
Judgment reversed, without costs.