Calkins v. Smith ( 1938 )

I think the complaint is sufficient to entitle plaintiff to some relief. Defendant, it should be remembered, let the case go by default. He does not seek relief from the default upon the grounds of mistake, inadvertence, surprise, or excusable neglect under section 9187, Revised Codes. His sole contention is that the complaint is insufficient to warrant any relief.

In testing the sufficiency of a complaint, which defendant saw fit to ignore, we meet a different rule from that involved if he had appeared and questioned its sufficiency at the proper time. A judgment rendered upon default will be sustained even though the statement of the cause of action may be so defectively made that it would have been open to a general demurrer, "provided its direct averments necessarily imply, or reasonably require, an inference of the facts necessary to supply the defect." (Crawford v. Pierse, 56 Mont. 371, 185 P. 315,318.) "Though an allegation be defective in form it is nevertheless admitted" by defaulting. (3 Bancroft's Code Practice Remedies, sec. 1803.) "Mere defects in the manner of alleging facts, of such a nature that they must be objected to by motion or special demurrer, do not prevent or defeat a judgment by default, since they are waived by the failure to make the proper objection." (Id., sec. 1805.)

The complaint here, tested by the foregoing rules, I think, was sufficient to warrant some relief. It alleged the payment by plaintiff of taxes assessed against the whole of a tract of land of which she was the owner of only one-half. The allegation is that the payment was made by mistake; that it discharged an "obligation for which defendant was liable, which obligation was a lien upon" the property, and "was for defendant's benefit and without any benefit to this plaintiff;" "that this defendant knew that said delinquent taxes were standing against his said property, and that the same was a lien against the same. That the same was paid as aforesaid, and that he was thus receiving the benefit of such payments as aforesaid." These allegations defendant admitted when he permitted the case to go by default.

My associates concede that if defendant retains the benefit of the payment, then there is liability. I think the complaint, with reasonable inferences to be made from the allegations set forth, is sufficient to charge the defendant with receiving the benefits of the payment. It does not allege how or wherein he is doing so, but the reasonable inference is that he is doing so by still claiming to be the owner of the property, freed from the tax lien. If defendant desired more information to enable him to determine how he was receiving the benefits of the tax payments (matters concerning which he perhaps already knew), the least he could and should have done was to demur specially, demand a bill of particulars, or move to have the complaint made more definite and certain. I think he could not sit supinely by, permit judgment to be taken against him, and then assert for the first time on appeal that the complaint was not sufficiently definite to state a cause of action.

I think, however, defendant is entitled to some relief. The complaint discloses on its face that plaintiff paid taxes on the entire tract of land in the amount alleged. The taxes due on the west half of the property constituted an obligation of plaintiff, and defendant is only liable for that part of the total tax due upon the east half. Since this condition appears affirmatively from the complaint, defendant is liable for only the tax due on the east half of the property.

I think the cause should be remanded with directions to modify the judgment so as to hold defendant for only that portion of the tax properly due on the east half of the property. It is proper to hear evidence on that point. The county treasurer, under section 2211, Revised Codes, can make computation of the amount of taxes properly assessed against the east half, as distinguished from the west half. Other witnesses qualified to speak on values may also testify as to the relative value of the east half as compared with the west half, and thus furnish criteria upon which to apportion the tax.

Defendant, by his default, did not admit the amount for which he should be held liable where, as here, the complaint discloses that he is not liable for part of the claim for which he was sued. Hence I think the cause should be remanded with permission to both parties to be heard on the question of the amount for which defendant is liable. All other issues have been admitted by the default.