Franklin v. Thatcher

<p>1. Appeal and Error — Review—Findings op Fact. Where findings of fact are based upon records of former proceedings in the district court, there can be no question concerning the facts. (Page 401.)</p> <p>2. Judgment — Default Judgment — Ministerial Act — Evidence. Under Comp. Laws 1907, section 3179,' subd. 1, providing for default judgment in actions on contract for money or damages only where no answer, demurrer, or motion has been filed, the act of entering default judgment is ministerial, and that the court which heard no evidence directed the judgment is immaterial.1 (Page 401.)</p> <p>3. Judgment — Default—Verification of Complaint. The direction in Comp. Laws 1907, section 3179, subd. 1, providing for default judgment in certain actions, that, i‘if the complaint shall not have been verified, it must be verified before the judgment is entered,” is mandatory. (Page 401.)</p> <p>4. Judgment — Default — Verification of Complaint — Waiver. Comp. Laws 1907, section 3180, providing that any of the formalities of section 3179 relating to entry of default judgment, if not insisted upon at the proper time, shall be deemed waived, dpes not apply to the verification of the complaint, which is not a mere formality. (Page'404.)</p> <p>5. Judgment — Default—Invalidity—Effect. A judgment entered by default upon an unverified complaint is in legal- effect as though" no judgment had been entered, and the case remains pending, and the court may at any time set aside and expunge such judgment. (Page 404.)</p> <p>6. Judgment — Default — Vacation — Amendment of Pleading— Verification. Where default judgment is expunged for invalidity for failure to. verify the complaint, plaintiff may, on notice to defendant, be permitted to amend the complaint by adding the verification. (Page 404.)</p> <p>7. Judgment — Validity—Amendment of Complaint — Verification. Where a default judgment has been set aside for failure to verify the complaint, and plaintiff is permitted to amend by adding the verification without serving "notice thereof upon the defendant, and judgment is then entered, such judgment is void, and the action remains pending. (Page 404.)</p> <p>8. Limitation of Actions — Effect of Action Pending. Where an action was begun within the period of limitation, and invalid default judgments therein entered were set aside, the action remained ponding and the statute did not run. (Page 404.)</p> <p>On Application for Rehearing.</p> <p>9. Appeal and Error — Review—Judgment Roll — Default Judgment. A judgment roll including a record showing that no answer, demurrer, or ihotion was hied by defendants conclusively shows their default, and the judgment is presumed to have been made by default. (Page 406.)</p>