McCord & Nave Mercantile Co. v. Glenn

Sandeord, C. J.: The complaint alleges the sale by the plaintiff at different times of goods and merchandise, and that others, who had assigned to him their claims, had also sold' goods to defendant, the whole indebtedness amounting to $1,976. To this complaint the defendant demurred. The demurrer was overruled, and the defendant allowed six days in which to file his answer. In our opinion, the complaint was not obnoxious on the grounds set forth in the demurrer. After having dealt with the corporation as such, it is too late to demur to its non-existence. The items of the amount sued for were sufficiently stated. They all arose out of contract, and were not so mingled as to render it impossible to determine the precise nature and amount of each. The Court, in giving further time to answer, did not prescribe the day on which the time to answer should begin to run, and on the sixth day after its decision, without service of notice on the defendant, judgment was entered against him by default. A motion to open the default was refused, and from the order denying that motion an appeal has been taken. It is contended that because the defendant was in Court at the time when the decision giving six days to answer was announced, and knew of it, he lost his statutory right to have the six begin to run after service of the notice. The Code (Section 347) provides that when a demurrer is overruled, and time to answer is given, the time so given runs from the service of notice of the decision. It is obvious that the defendant did not intend to waive the service of notice, inasmuch as he immediately moved to open the default, when notified of the same. His application to set aside the default was. [142] •opposed by tbe plaintiff, and was denied apparently on the ground that he had waived his right to a service of notice. We are of the opinion that the default should be set aside, and the defendant allowed to file his answer, for the reason that the plaintiffs did not comply with the statute directing that the time given, when a demurrer is overruled, should begin to run from the service of notice of the decision. It does not appear on this appeal that the decision rendered was ever filed, and it cannot be said to have been a decision until it was filed. Carpentier v. Thurston, 30 Cal. 123. The case of Barron v. Deleval, 58 Cal. 95, supports the position of the respondent that there was a waiver of the written notice. While it is true that a party can waive the benefits of a statute, there should be a substantial evidence of a waiver, and it should not be left to ■construction or doubt. A waiver of notice affecting a right to a judgment should be clear, and beyond dispute. The decision of this Court in Burlock v. Shupe, reported in 5 Utah, 428, 17 Pac. Rep. 19, maintains a different view, and we follow and approve of that decision. By following the statute.literally, such proceedings will be rendered more certain and definite, and possible controversies thereby avoided. A writ of attachment was .granted in the Cqurt below on the 31st day of May, 1888, and it is urged on appeal that it was void because the affidavit on which it was granted was defective in that it had no venue, and did not comply with the requirements of the Code. We have carefully examined the objections raised, and have reached- the conclusion that the writ would not be defective, even if the affidavit had, as it claimed here, no venue. It appeared here that the county was stated in the affidavit, and the letters “ss.” (scilicet) omitted. Reavis v. Cowell, 56 Cal. 588. The allegation in plaintiff’s affidavit as to the disposal and concealment of his property was a fact which was settled and decided below. The Court has power under our Code to allow an amendment to a pleading in a proceeding. Code, § 344. In granting the amendment complained of, we do not [143] discover that the Court erred. Nothing was affected by the amendment which tended to impair the defendant’s rights, and we are of the opinion that the motion to dismiss the writ of attachment was also correctly disposed of below. The case, however, will be remanded to the lower Court, in order that the default taken may be set aside. The defendant may have leave to answer the complaint within ten days after the service of a written notice, as provided by a section of the Code above cited. BoeemaN, J., and Judd, J., concurred.