Gallup v. Thomas B. Jeffery Co.

Prentice, J. The only right of action which the plaintiff claimed to have against either of the defendants was one for which recovery could not be had under the so-called common counts. It was one arising from the breach of a penal bond with condition. The only obligation which the defendants assumed in executing that instrument was a conditional one, and not such an one as permitted the use of the common counts in an action for its breach. Goodrich v. Stanton, 71 Conn. *311 418, 424, 42 Atl. 74. This fact plaintiff’s counsel apparently recognized when, before a default was taken, a substitute complaint was filed. The proceedings by which judgment was thus obtained were entirely irregular. In the first place the course pursued was, in practical effect, the institution of an action by the service of a summons alone, and thus an evasion of the requirements of our practice. “A complaint . . . must accompany a writ of summons or attachment. The writ is void if there is no complaint, and it is sheer oppression if the facts stated in the complaint are admittedly false. For this reason the plaintiff should not be permitted to bring the defendant into court or attach his property upon a false statement of claim which he intends to wholly abandon; and then, by way of amendment, compel the defendant to litigate a different claim without being brought into court in the manner required by statute. Such an amendment is not an amendment within the meaning of § 1023.” Dunnett v. Thornton, 73 Conn. 1, 14, 46 Atl. 158. Again, the procedure had brought about the rendition of a judgment by default upon a cause of action in respect to which there had been no default, and, therefore, no admission by default. A judgment by default rests upon the legal assumption that the default, like a demurrer, is a constructive admission of the truth of the allegations of the complaint. Shepard v. New Haven & N. Co., 45 Conn. 54; East-India Co. v. Glover, 1 Strange, 612; Ames Cases on Pleading (2d Ed.) 66, and note. The defendant against whom this judgment was rendered had been notified, through the service made upon it, that the plaintiff was asking for a judgment for a cause of action embraced within the limits of the permitted use of the common counts. It was entitled to regulate its action in the matter of appear *312 anee in the light of this notice. Presumably it did so, and quite possibly it, as it reasonably might, withheld its appearance upon the strength of its knowledge that a judgment could not be rightfully entered against it under the rules governing the use of the form of pleading resorted to by the plaintiff. An exercise of the right of amendment involving the incorporation of a new cause of action into the complaint is one thing, when the defendant or defendants are in court and thus in a position to be informed, and quite another when they are not in court and are not duly notified. To permit the latter procedure would be to open the door for the gravest injustice; the law does not permit it. Under the conditions existing at the time of the Bonding Company’s appearance it might well have continued to withhold it, and secure a reversal of a judgment upon the substitute complaint upon a writ of error. It chose the course of appearing and asking that the default' be erased and the judgment set aside. In granting this motion the court not only acted within the limits of its discretion, but also did what the plain requirements of justice demanded, to the end that what had been wrongfully done be undone. Goodrich v. Alfred, 72 Conn. 257, 260, 43 Atl. 1041. The plaintiff’s contention, that the court erred in not limiting its order upon the motion to one permitting such defendant to be heard upon the assessment of damages, is not well founded. Such a limited order would not have righted the real wrong. That wrong could not be righted until the record was purged of not only the completed judgment, but also of any and all entry of judgment, whether final or interlocutory, which might help to fasten upon the defendant a liability under the substitute complaint which had acquired no lawful standing in the case. It matters not that the defense .which the defendant Bonding Com *313 pany, acting in conformity with § 748 of the General Statutes, asserted in its motion that it had, was not one which would defeat a judgment for nominal damages upon a cause of action such as the substitute complaint contained. The fault to be remedied lay deeper than that which the statute referred to was designed to reach, and justice could only be done by the unqualified action which the court took, and which it had the power to take unasked. It follows from what has already been said that the court did not err as charged in granting the Bonding Company’s motion to erase the substitute complaint, and later in denying the plaintiff’s motion for leave to file the same as an amendment. This complaint could claim no rightful place in the action. As was said in the passage already quoted from Dunnett v. Thornton, 73 Conn. 1, 14, 46 Atl. 158, it could not be considered in any true sense as an amendment. It is essential to an amendment of a complaint adding to its averments, that it either amplify or make more adequate or perfect the statement of a cause of action already, although perhaps imperfectly and insufficiently, made, or add some new cause of action which may be joined with those already set up. General Statutes, § 639; Kelsey v. Punderford, 76 Conn. 271, 276, 56 Atl. 579; Will’s Gould on Pleading (6th Ed.) 136. The present substitute complaint set up neither a cause of action of which any one of the common counts was a general statement, nor a cause of action which could have been joined with the common counts. The causes of action which may be so joined are specified in § 627 of the General Statutes, and this belongs to neither class there described. The plaintiff further contends that whatever view be taken of the court’s action as related to the Bonding Company, it was erroneous as touching the other de *314 fendant who was not served, but volunteered to- appear subsequent to the time when the substitute complaint had been filed. We are unable to concur in this proposition. This defendant, when it came into court, was not precluded, by the fact that its appearance was voluntary and late, from objecting to wrongful action which the court had taken, and from asking that the proceedings be set into a rightful course. There is no error. In this opinion the other judges concurred.