cited to sustain the same doctrine. But an investigation of all of the authorities convinces us that a different rule applies in cases where the action is for damages. "In all actions sounding in damages, the plaintiff is limited by his demand therefor in his declaration or complaint, and can recover no more than the amount specified." 5 Enc. Pl. & Pr. 712. "The rule, then, is settled that the demand of the plaintiff in his declarations decides the sum in dispute." Desbrow v. Driggs, 16 How. Prac. (N. Y.) 346. "The value of the matter in, dispute, for the purposes of removal, is to be determined by reference to the amount claimed in the declaration, petition, or bill of complaint." Dillon's Removal of Causes, § 93. See, also, Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729; De Camp v. Miller, 44 N. J. Law, 617. In any event, the application to amend was submitted to the discretion of the trial court, and, from the whole record in the case, we are satisfied that the discretion was not abused.

At the time the respondent went to work for the mill company, he was instructed as to what his duties should consist of; that is to say, he was to pull the slack for the loaders, to clean bark and dirt off the track, and to stamp the logs. He worked in the performance of such duties until the day before his injury, which occurred when he was attempting to couple one logging truck to another, one of the logging trucks being stationary and the other being pushed up grade by one man at the time of the injury. The contention of the appellant is that the respondent had never been ordered to make couplings, and that, therefore, the appellant was not responsible for any injury that happened to him in the performance of the work which was unauthorized. The testimony shows that, on the evening before the accident, Mr. Gill, the agent of the company, told respondent to "get in and do anything that he saw to be done," and that immediately he proceeded to do anything that he saw it was necessary to do in and about the work in which he was engaged; that when he saw the cars needed to be coupled, he coupled them; that he coupled one car that evening in the presence of Mr. Kempler, the head loader, and that the next morning when coupling another car. Mr. Kempler shoving the movable car, the accident occurred. There is some conflict in the testimony as to the latitude of the instruction given by Mr. Gill, but that was a question for the determination of the jury. This whole case resolves itself into this proposition: Was the respondent instructed to couple the cars, or did he have a right to construe his instructions to include the coupling of cars? think there was sufficient testimony on that subject to permit the jury to determine that the respondent was justified in concluding that he was authorized and instructed to couple cars as well as to do anything else

that was to be done around there. The car coupling was not excepted from the general direction. It is conceded that the boy was not instructed how to couple cars, or informed of the danger of coupling cars. It is contended by the appellant that the boy appreciated the danger from the fact that he stated he knew that if he did hold on to the link until the drawheads came together his hand was bound to be crushed. Of course, he did understand that; but, equally of course, he did not intend to hold onto the link until the drawheads came together and crushed his hand. His testimony was that, in noticing the danger to his legs, he turned around to protect them, and that, inadvertently, of course, he left his hands in the dangerous place too long. Every man of common intelligence knows that if his hand comes in contact with a running saw, or his head with a descending pile driver, or any part of his body with any dangerous piece of machinery in motion, he will be injured. If the simple fact that he knew that, if there was a contact between his person and the dangerous machinery, injury would result to him, would preclude him from recovering, no man could ever recover, no matter what the negligence of the employer was in not furnishing him a safe place, or not informing him of the perils incident to his particular employment.

Many objections are made to the instructions in this case, but they involve questions that have been determined over and over by this court, and it would be unprofitable to again enter into a discussion of them. The instructions, it seems to us, were all fair and stated the law, and were as favorable to the appellant as instructions could possibly be and keep within the law.

The judgment is affirmed.

MOUNT, C. J., and FULLERTON, HADLEY, and RUDKIN, JJ., concur. ROOT, J., dissents.

(44 Wash. 287)

STARK BROS. v. ROYCE. (Supreme Court of Washington. Nov. 9, 1906.) 1. MORTGAGES-FORECLOSURE-SALE-CONFIR

MATION.

Where a sale of land under a foreclosure of an alleged mortgage was unsustainable because the foreclosure decree was invalid, the court, on an application to confirm the sale, was authorized to take cognizance of the fact that the judgment on which the sale was founded must be set aside, and to refuse for that reason to confirm the sale.

[Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1530-1533.]

2. JUDGMENT MODIFICATION-NOTICE.

Where plaintiffs appeared at the hearing of a motion to modify their judgment, and no objection was made that there was any lack of notice, they could not thereafter object that the order modifying the judgment was invalid for want of notice.

3. SAME-VACATION-MOTION.

Under the express provisions of Ballinger's Ann. Codes & St. § 5155, an application for

rule that the regularity and sufficiency of a judgment, fair upon its face, cannot be inquired into at a hearing had on objections made to the confirmation of a sale, even where the sale is made under an execution issued on such judgment. To attack a judgment in this matter was said to be a collateral attack, and it was only where the judgment was void on its face that such an attack could be successfully made. The court, however, did make use of certain language in further discussing the statute that would seem to justify the appellants' contention; and the same may be said of the case of Harding v. Atlantic Trust Co., 26 Wash. 536, 67 Pac. 222, subsequently decided. But, in the later case of Waldron v. Kineth, 41 Wash. 459, 84 Pac. 16, these cases were modified in the latter respect, and a much wider inquiry was held permissible; the court holding that the question whether real estate sold under execution was at the time of the sale exempt as a homestead might be inquired into and determined on a motion for confirmation of the sale. This last case justifies the order in question here. If the order vacating and setting aside as improvidently entered that part of the judgment authorizing and directing the sale is valid, then, unquestionably, an order of confirmation of the sale cannot in any manner aid the appellants. The sale as against them must fail for want of a judgment to support it, and, since they are the purchasers at the execution sale, they can acquire no title by its mere confirmation, whatever might be the rights of a third person purchasing at a judicial sale had under a judgment fair on its face. Hence, a confirmation in so far as it would affect the appellants can be of no validity, while it might compel the respondent to resort to an independent action to remove the apparent cloud on his title. It is the policy of the law to avoid circuity of actions, and inasmuch as the subject-matter of the controversy between the parties, as well as the parties themselves, were before the court in this proceeding, we conclude that the court could properly take cognizance of the fact that the judgment on which the sale was founded must be set aside, and refuse for that reason to confirm the sale.

It is next contended that the court was without jurisdiction to modify the judgment. In support of this contention it is said that the motion to vacate was heard without notice to the appellant; that the proceeding should have been by petition and not by motion; and that the court was without authority to modify the judgment for any of the reasons stated in the motion. As to the first objection the record does show that the motion was served upon the appellants on March 9, 1906, was noticed for hearing on the 13th of the same month, and that it was heard on the 24th of the month. But it shows further that the appellants appeared at the hearing by their attorneys, and resisted the motion, and does not show that

any objection was made to such hearing on the ground of insufficiency or want of notice. Under these circumstances, this court cannot say there was lack of notice. On the contrary, it appears to us that the proceedings were regular and orderly.

The second contention is settled by the statute itself. The trial court modified the judgment on the ground of irregularity in obtaining it, and by section 5155 of the Code (Ballinger's Ann. Codes & St.) it is expressly provided that where the grounds for vacating or modifying a judgment are for irregularities in obtaining the judgment the proceedings shall be by motion. Griffith v. Maxwell, 25 Wash. 658, 66 Pac. 106. But had the order been based on the second ground of the motion; namely, that the judgment was void, the result would not be different, as a void judgment is properly set aside upon motion. Sturgiss v. Dart, 23 Wash. 244, 62 Pac. 858; Dane v. Daniel, 28 Wash. 164, 68 Pac. 446.

As to the contention that the court was without authority to modify the judgment for any of the reasons stated in the motion, it would seem, unquestionably, that if the judgment was void in so far as it directed a foreclosure of the asserted lien, the court had jurisdiction to modify it by striking out the void part, and its order in that respect could not be a nullity for want of power to make it. But it is contended that, conceding the judgment to be founded on an erroneous construction of the contract set out in the complaint. it was nevertheless merely voidable and not void, and must be vacated, if vacated at all, on the first ground stated in the motion of respondent; namely, that it was irregularly obtained. And, on this question it is argued that the facts do not show an irregularity in obtaining the judgment which the law permits to be corrected by motion, but an error of law committed by the court that can be corrected only by a direct appeal from the judgment. It has seemed to a majority of this court that the judgment in question was only voidable and not void, and hence we agree with the appellant that authority for its modification must be found in the first branch of the motion rather than the second: that is, that it was irregularly obtained. Taking this view of the matter, we still think the judgment is one coming within the definition of an irregular rather than that of an erroneous judgment. If the respondent's view of the contract be correct, a question we will notice later, the judgment was one entered by default beyond the purport and scope of the pleading; that is to say, it was one the appellants were not entitled to under any of the allegations of their complaint. It is a general rule that a default admits only those allegations of a complaint that are well pleaded; 6 Ency. Pl. & Pr. 117. So, it is also a general rule that a defendant has a right to rely on the presumption that a court will not, on his default, enter a judgment against him not warranted by the plead

ings; Bosch v. Kassing, 64 Iowa, 314, 20 N. W. 454. Any default judgment, therefore, which goes beyond the scope of the pleadings, inasmuch as it is a judgment against which the defendant has had no opportunity to defend, is a judgment obtained contrary to the course and practice of the courts, and hence, is a judgment irregularly obtained within the meaning of the statute, rather than one entered through error of law committed by the court. Cases in point are Vass v. Building Association, 91 N. C. 55, and Larson v. Williams, 100 Iowa, 110, 63 N. W. 464, 69 N. W. 441, 62 Am. St. Rep. 544. In the first case a judgment was entered against certain defendants who had been summoned to appear by leave of court as additional parties defendant, but against whom no pleadings had been filed. After the judgment had been entered, the defendants moved against it on the ground that it had been irregularly obtained. This motion was granted by the trial court, and affirmed on appeal; the appellate court saying: "An irregular judgment is one given contrary to the method of procedure and the practice under it, allowed by law. As, if judgment should be given against an infant, no guardian having been appointed or appearing to represent him and take care of his interests in that behalf; or, where the court gave judgment without the intervention of a jury in a case where the party complaining was entitled to a jury trial, and did not waive his right thereto; or, where a judgment was prematurely entered by default; or, where it was the duty of the plaintiff to give notice of the taxing of costs, and failed to give such notice, and took judgment. In such and like cases, the judgment is irregular, and upon proper application of the party injured the court would set it aside for such irregularity. Keaton v. Banks, 10 Ired. (N. C.) 381, 51 Am. Dec. 393; Dick v. McLaurin, 63 N. C. 185; Cowles v. Hayes, 69 N. C. 410; Freeman on Judgments, § 97. Then, is the judgment in question irregular in a material respect? We think it is; and that is so because it was without any proper pleading on the part of the plaintiffs that put the appellees to any defense they might be able and see fit to make."

The second case. was an equitable action brought to set aside a default judgment entered against the wife of the principal defendant. A personal judgment had been taken against her although it appeared from the allegations of the complaint that she was not personally liable as she was not a party to the contract out of which the liability arose. The notice served upon her, however, recited that a personal judgment would be taken against him if she did appear and defend the action. The statute there provided that a judgment may be vacated, among other causes, for "irregularity in obtaining

the judgment," and the question was whether the facts brought the case within that provision of the statute. On this question the court said: "We think the facts alleged and established make these grounds applicable in this case. Here was a petition which contained no allegations authorizing a personal judgment against Celia Larson. Counsel, taking the decree of the court, knew such to be the fact. As a lawyer, he knew that Celia Larson might confidently rely upon the fact that nothing was sought, as against her, save the extinguishment of her dower right in the premises. Having no defense to make to that claim, she was not called upon to appear and to answer to the petition. It matters not that the notice said that a personal judgment would be asked against her, as she had a right to rely upon the fact that the petition contained no averment warranting such relief. It is claimed that, as the court by the notice had jurisdiction of the person of Celia Larson, and by law had jurisdiction in a proper case to render a personal judgment as to the subject-matter. therefore jurisdiction was in all respects complete, and, having failed to appear, she is concluded from now being heard. Such claim is not well founded. It is said in Bosch v. Kassing, 64 Iowa, 314, 20 N. W. 454: 'It is true, a defendant may be concluded by a default where the facts stated in the peti tion do not constitute a good cause of action in law, or where the petition is so defective as to be vulnerable to a demurrer; but where the petition omits the necessary averment to show liability against the defendant, the court may, and should, even upon default, refuse to enter judgment.' Clearly, then, procuring the court to enter such a judgment, under the circumstances, was an 'irregularity in obtaining a judgment,' under the statute we are considering."

On the question of the nature of the contract set out in the complaint, we are clearly of the opinion that it is not a mortgage or lien of any kind upon the lands described. It does not, by any express words, purport to charge the land with the payment of the indebtedness it creates, and such an intent cannot be inferred from the phrase, above quoted, purporting to bind the "heirs, assigns, and grantees" of the lands. But, without further reviewing the question, we think it a simple contract for the payment of money, and did not authorize the judgment of foreclosure originally entered by the court.

We conclude, therefore, that the order appealed from should be affirmed, and it is so

ordered.

MOUNT, C. J., and RUDKIN, HADLEY, and DUNBAR, JJ., concur.

CROW and ROOT, JJ., did not participate