Work v. Ogden

Per Curiam.

We think the amendment of the complaint, whereby the plaintiffs were allowed to charge the defendants properly with the counsel fees, was unauthorized, so far as it affected the appellant. The defendant had appeared in the action, and interposed an answer. His counsel had advised him that he had no defense to the plaintiffs’ claim, as alleged in the complaint, and, although his counsel had intended to be present at the trial, in consequence of a mistake he was not present, and the case was tried and judgment entered as against this defendant by default. Yo amendment to the complaint that increased the burden upon defendant could be made without notice to the defendants who had appeared in the action, and the amendment in question was ordered by the court in the absence of that defendant, and without notice to him. His absence from the trial was, of course, a waiver of the right to object to the testimony, or to the granting of the relief asked for in the complaint, but was not a waiver of notice of motion to so amend the complaint that charges not set up in the complaint, and which were for money paid by plaintiffs after the complaint was served, were added to the amount which plaintiffs sought to have the court adjudge was a lien upon the defendant’s property. When the complaint was thus amended, this defendant had the right to plead to it, and that right could not be taken from him, and a judgment entered against him on the amended complaint, not served on him, and which he had no opportunity to answer. As the defendant was in default on the. trial, he cannot appeal from the judgment, and so have the question as to the propriety of the charge for legal services determined, and his only remedy was to make the motion to set aside the judgment. The order appealed from must be reversed, and the motion granted, and judgment vacated, with costs as to the appellant, unless the plaintiffs stipulate to deduct from the amount of the recovery the amount allowed for counsel fees, in which case order is affirmed, without costs.