Ward v. Ward

Sharpstein, J.: This is an appeal from an order vacating a judgment entered by default in an .action brought to recover damages for a breach of contract of marriage. In an action arising on contract, for the recovery of money or damages only, the summons must contain a notice that unless the defendant appears and answers within a specified number of days, the plaintiff will take judgment for the sum demanded in the complaint (stating it). (C. C. P., § 407.)

The notice contained in the summons in this action is as follows: “And you are hereby notified, that if you fail to appear and answer the said complaint as above required, the said plaintiff will apply to the Court for the relief demanded therein.” In other actions than those arising on contracts for the recovery of money or damages only, that would be the appropriate notice to insert in a summons. (Id.)

It is sufficiently obvious that there was a substantial departure in this case from the form of summons prescribed by the code in actions on contracts. In Lyman v. Milton, 44 Cal. 630, the Court said: “We entertain no doubt that a summons must contain all that is required by the statute, whether deemed needful or not.” We have no doubt that the entry of a judgment by default in the absence of a notice in the summons, that in case the defendant failed to appear and answer within the time prescribed by law, the plaintiff would take judgment for the sum demanded in the complaint, was at least such an irregularity as would justify the Court in vacating the judgment. A judgment may now be vacated on motion for any of the matters for which a writ of coram nobis or an audita querela would formerly lie. (Freeman on Judgments, § 93.)

We are unable to discover any ground upon which the order of the court below should be disturbed.

Order appealed from affirmed.

Myrick, J., and Morrison, C. J., concurred.