Fraser v. Oakdale Lumber & Water Co.

Belcher, C. 0. — In the complaint filed in this case there are set forth several distinct causes of action. The first is on account for work and labor alleged to have been performed by plaintiff for defendant at its special instance and request. The others are on account for work and labor alleged to have been performed by other parties for the defendant at its especial instance and request, and by such parties sold and transferred to the plaintiff.

After • setting out these several causes of action and their assignment to the plaintiff, the complaint then proceeds:—

“ Plaintiff, further complaining, alleges that he is now the owner and holder of all said accounts; that said defendant is now indebted to him thereon in the sums hereinbefore set forth; that defendant has refused and neglected, and still does refuse and neglect, to pay said amounts, or any part or portion thereof, although the same is due and payment thereof has been frequently demanded.”

Then follows the prayer that plaintiff have judgment against the defendant “ in the sum of $912.67 upon his account for work and labor, in the sum of $165.84 upon the said assigned claim of John Borteilho, in the sum of $315.40 upon the assigned claim of John Conlin,” etc., “ said sums aggregating the sum of $3,758.93, together with costs of suit.”

[189]Service of the summons was made upon the president of the defendant corporation. In making the service the sheriff handed to the president a copy of the summons with a copy of the complaint in which the word “hereinbefore,” as it appears in the clause before quoted, was written “ hereinafter.”

The defendant appeared specially, and moved the court to set aside the service of summons, on the ground that no copy of the complaint, as required by law, had ever been served upon the defendant; “ that the paper purporting to be a copy of the complaint, and which was handed to defendant, was not and is not a copy of the complaint as filed in said cause.”

The court denied the motion, and the defendant reserved an exception.

Thereupon the defendant demurred to the complaint upon the grounds,—1. That it did not state facts sufficient to constitute a cause of action; 2. That several causes of action were improperly united.

When the demurrer came on to be heard, counsel for defendant asked that it be considered only with reference to the copy of the complaint as served. This request was refused, and an exception reserved. The demurrer was then argued, submitted, and overruled. The defendant was given time to answer, but neglected to do so, and thereupon, on motion, judgment was entered in favor of plaintiff.