Huston v. Whitsell

48 Ind. 129

• Court: Indiana Supreme Court
• Decided: November 15, 1874
• Status: Published

Opinion

Wobhen, J.

This was an action by the appellee against the appellant, on two promissory notes waiving the benefit of valuation and appraisement laws.

Judgment by default for the amount due on the notes, to be collected without appraisement.

There was an ordinary prayer in the complaint for judgment for two hundred and fifty dollars. This is more than the amount for which judgment was rendered.

There was no special prayer for judgment without relief, etc.

It is objected that as there was no special prayer for judgment without relief, and as the judgment was rendered by default and without the appearance of the defendant, the judgment rendered without relief is erroneous.

This proposition is based upon the provision in the statute* that “ the relief granted to the plaintiff, if there be no answer,, cannot exceed the relief demanded in his complaint.” 2 G. & H. 220, sec. 380.

We are of opinion, however, that a prayer for a judgment for money is a sufficient prayer for a judgment for its collection in the mode warranted by the facts alleged in the complaint. The relief granted did not exceed that prayed for. Both the prayer and the judgment were for the money.

The order for the collection of the money without appraisement was only an incident to the judgment, intended to facilitate its collection. When the money is collected in accordance with the judgment and paid to the plaintiff, he will have-only what he prayed to have adjudged to him.

There is no error in the record.

The judgment below is affirmed, with costs.