Ostling

This is a plaintiffs’ appeal from an order after judgment. The defendant failed to answer the plaintiffs’ complaint and his default was entered. An ex parte hearing on the issue of damages was held, evidence taken, and a default judgment entered for damages. The trial court vacated the default judgment and set aside the default.

We conclude that the default judgment was properly vacated because the award of damages exceeded that demanded in the complaint but that a judgment in favor of plaintiffs should be entered for the maximum amount warranted by the complaint. We also conclude that defendant may not challenge the measure of damages because he failed to perfect a new trial motion and did not appeal from the default judgment. Last, we conclude that the trial court erred in setting aside the default on the theory the plaintiffs’ request for excessive damages worked a de facto amendment of the complaint; only an actual amendment of the complaint opens the default and entitles the defendant to be heard on its allegations.

We will reverse the order setting aside the default and affirm the order vacating the default judgment with directions to enter an appropriate…