Alexander v. McDow

•Summons—Return of Service—Clerical Error—Vacation of Judgment by Default.—Where a summons against one defendant only is returned as having been served upon the defendant personally an irregularity consisting of a clerical error or slip of the pen, by which a letter is affixed to the last name of the defendant which did not belong to his name, does not affect the regular service of the summons, and the irregularity is no ground for vacating a judgment by default.

Action Upon Note—Sufficiency of Pleading—Assignment to Plaintiff—Support of Judgment.—In an action upon a note a complaint alleging the execution of the note set out in hose verba, and described as indorsed by the payees to the plaintiff by name, accompanied by the allegation that no part of the note had been paid, and that the whole thereof is due and owing from the defendant to the plaintiff, though defective in not distinctly alleging an assignment of the note to the plaintiff, is sufficient to support a judgment by default, which cures all defects in averments which by fair and reasonable intendment have been pleaded, though defectively. Such complaint shows an indorsement by assignment of the note to the plaintiff, and that plaintiff is the owner and holder of it. .

Id.—Allowance of Attorneys’ Fees—Stipulation in Note—Default. Where the body of the note set forth in the complaint provides for an allowance of ten per cent for attorneys’ fees for the collection of the note, and the prayer of the complaint is for such an allowance, and it appears that the action was brought by an attorney at law, the default of the defendant admits the reasonableness of the claim for attorneys’ fees, and no evidence was required to be taken for the purpose of fixing the agreed allowance in the judgment, although the allowance might have been contested by the defendant.

Id.—Judgment for Attorneys’ Fees Entered by Clerk—Ministerial Action.—The action of the clerk in estimating and adding the amount of attorneys’ fees to the judgment by default is as purely ministerial as his calculation of interest upon the principal sum of the note, and he was acting within the scope of his authority in entering judgment for the attorneys’ fees.

Id.—Specification in Summons—Limitation of Authority of Clerk— Modification of Judgment—Costs of Appeal.—The clerk has no authority to enter judgment for an amount in excess of the amount specified in the summons, and, if a judgment by default is entered in excess of that amount, the superior court will be directed to order the clerk' to modify it by entering therein the amount specified in the summons, and the appellant will be allowed the costs of his appeal.