¶1The opinion of the Court was delivered by
¶2The summons in the case is framed under the second subdivision of Section 152 of the Code of Procedure.
¶3It notifies the defendant that, on failure to answer, “the plaintiffs will apply to the Court for judgment against him.” If they regarded their demands as of a character to entitle them to a judgment by the Clerk in default of answer, the summons should have been in conformity with the first subdivision of the Section referred to.
¶4In cases under the Code where (before its amendment) a valid judgment could be entered without an order from the Court, the defendant was admonished, by the language of the summons, that on failure to answer the plaintiff would “take judgment.” Under such summons, with the necessary complaint, the Clerk was authorized to enter judgment. — Code, § 269. But here the process served upon the defendant notified him that, on default of answer, the plaintiff would “apply to the Court for judgment against him.” His failure to answer .certainly could confer no right on the Clerk which was not expressly given by the Code, and he could not assume to act in a case where, according to the language of the plaintiffs in their summons, application was to be made “to the-Court for judgment.”
¶5*449Section 152 of our Code corresponds with Section 129 of that of New York.
¶6In relation to the second subdivision of said Section, it is held to express the proper notice to be given in all actions for unliquidated damages on contracts.— Garrison vs. Carr, 34 How., 187; Salters vs. Ralph, 15 Abb., 273; Brown vs. Eaton, 37 How., 325. The plaintiffs, by the selection of their remedy, have recognized their claim as comprehended within the second subdivision of the Section, and it would be a surprise on the defendant to allow them now to question the character which they have given to their demand as one to be passed upon only by the Court by claiming that it is of a different nature and included within the action of which the Clerk may take cognizance. The order for judgment is set aside and the case remanded to the Circuit Court for such action as the respective parties may be advised to take.