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road Company, 6 How. 308 ; 10 L. O. 158. The different points in which summons may be defective, have already been enlarged upon in the chapter devoted to its consideration.
After any preliminary objections to the summons itself shall have been thus disposed of, the next point to be attended to, is the giving due notice of appearance by the defendant's attorney. This is a most essential precaution, and should be looked to at once, as it may often be highly advisable, even when a defence to the action is not contemplated. If omitted, the defendant will not be entitled to further notice in the suit, whilst, if he appear in due form, he must be served with such notice in all cases, and particularly with reference to the entry of judgment under sec. 247. It will thus be in his power to supervise the plaintiff's subsequent proceedings, with reference to the amount of his demand or otherwise.
Of course if any objection exists to the summons, or on the ground of deficient service, the defendant's attorney must give no such notice till the question shall have been decided. See Dix v. Palmer, and Flynn v. The Hudson River Railroad Company, above cited. If, pending the motion for that purpose, the time for answering should be drawing out, he may apply for a stay of all proceedings until the decision of the motion, and some reasonable time after, but without prejudice to the questions raised upon the motion. Such an order as this would probably be held not to be a recognition of the validity of the plaintiff's proceedings.
Even when a copy of complaint has been served with the summons, the sooner notice of appearance is given the better. No particular form is required for such notice, but it should be in writing, and served on the plaintiff's attorney. (See rule 7 of the supreme court.) Where, however, the summons has been served alone, the notice should be accompanied by the demand of a copy of the complaint, and, in these cases, the immediate service may, or may not be a matter of expediency. Where delay is not an object, of course the defendant will be anxious to gain an insight into his adversary's case, as soon as possible: but, where he wishes, on the contrary, to gain time, he may, under sec. 130, delay further proceedings on the part of the plaintiff, for twenty days, by serving the notice on the last day allowed for that purpose.
The demand as above, must, under the special provisions of sec. 130, be in writing, and must specify a place in the state
where that copy may be served. It may be made either in person or by attorney, though, if an attorney have been employed in the action, the latter will be the proper person to make it in all cases; and the party making it will, of course, take care to name his real place of residence or business, in order to ensure the direct service upon him of all subsequent notices or papers in the suit. (V. Rule 5 of the supreme court, and sec. 417 of the Code.) For Form of notice and demand, see Appendix.
Under the Code of 1849, this proceeding could only be taken within ten days after service of the summons.
If not demanded within that time, the plaintiff was not bound to serve a copy of his complaint afterwards, unless by special order of the court.Bennett v. Dellicker, 3 C. R. 117; in which case an order denying a copy of the complaint under such circumstances, was sustained. As a general rule, however, the courts were disposed to grant an application for that purpose, but, of course, upon proper terms.
See the same case, and also Engs v. Overing, 2 C. R. 79.
In both these cases a strong bias was shown by the court in favor of the plaintiff's filing his complaint at once, in all cases where a copy is not served.
In Toomey v. Shields, 9 L. O. 66, it was even held that he was obliged to do so within the time allowed to the defendant to answer, and a judgment obtained in the usual mode was actually set aside on the ground that this had been omitted. It seems clear, however, that the conclusion in this last case is erroneous. The Code contains no provision whatever to warrant it.
the recent amendment, these questions are no longer likely to arise, the defendant's power to demand a copy of the complaint being now extended to twenty days, the full period allowed him to answer.
Under the Code of 1849, no period was limited within which the copy of the complaint so demanded was to be served, and there was, in consequence, a great division of opinion among the judges upon the subject. In Littlefield v. Murin, 4 How. 306, 2 C. R. 128, twenty-four hours was considered a reasonable time ; and in Walrath v. Killer, 2 C. R. 129, similar views are enounced. Forty-nine days were clearly held to be an unreasonable time in Ecles v. Debeand, 2C. R. 144. In Colvin v. Bragden, 5 How. 124, 3 C. R. 188, and Munson v. Willard, 5 How. 263, 3 C. R. 250, twenty days was fixed upon as a proper period, in analogy with the time given to answer or reply; and it will be seen that this last period has been adopted by the legislature, and is now the rule for the future.
In case the plaintiff complies with the demand, and serves the copy, the defendant's time to answer runs from the date of that service, without regard to the original service of the summons. It is clearly, therefore, the plaintiff's interest to do so, as speedily as possible. An attorney representing several defendants, is entitled to only one copy.--V. sec. 130. The service of this copy
within the time demanded, is absolutely obligatory, the term “must" being employed, instead of “shall,” the term used in the Code of 1849. À fortiori, therefore, will the defendant be entitled to move to dismiss the complaint, or for other relief of that nature, in case the plaintiff omit to do so within the time prescribed. This rule had already been laid down, under the previous measure; though the actual time to be allowed being then unfixed, the court was always disposed to allow the plaintiff a last opportunity to comply with the requisition, under proper terms. In Littlefield v. Murin, above cited, it was distinctly held that the defendant was entitled to make this motion, both under the old practice, as saved by Rule 92, and also specially under sec. 274 of the Code, which last provision authorizes the court to dismiss the complaint with costs, in case of unreason. able neglect to proceed, on the pari of the plaintiff. It was also considered that sec. 416, under which the filing of pleadings which have been served may be compelled by the adverse party, was inapplicable to the case now under consideration, in which the pleading has never been served at all. In Walrath v. Killer, 2 C. R. 129, the same doctrine was enounced, but it was further held that a motion of this description must be made on the first motion day after the expiration of the time the plaintiff had for that purpose ; and, on the ground that the defendant had waited forty days, in the belief that the plaintiff would be allowed that time, the case being one where service by mail was admissible, the motion was denied. There can be no question but that this doctrine would be sound, under the present amendment, where a positive time is fixed; but the case seemed somewhat hard, under the former measure, by which that time was left uncertain. In Ecles v. Debeand, 2 C. R. 144, a motion to dismiss was also granted, on the ground of unreasonable delay, but conditionally, in case the plaintiff should fail in compliance with strict terms imposed upon him ; and it was held that the non-payment of his counsel-fee, was not a sufficient excuse for his past delay. In Colvin v. Bragden, 5 How. 124, 3 C. R. 188, similar relief was granted, but upon terms; and in Munson
: v. Willard, 5 How. 263, 3 C. R. 250, the principle was treated as admitted, though the motion was there refused, as being made prematurely.
In all the above cases, a locus penitentice was, as will be seen, given to the plaintiff; though the defendant's right to move, and to the costs of the motion when properly made, and also the propriety of imposing stringent terms upon the plaintiff, was admitted in all. Under the recent amendment it is, as before observed, probable that a stricter practice will be adopted, and especial care should be taken by the plaintiff to complete and serve his complaint within the twenty days, in all cases. If he cannot do so, he should, on no account, omit to apply to the court for an order extending the time allowed.
Of course, in reference to the different periods of time above referred to, and elsewhere throughout the work, the nature and incidents of service by mail, where admissible, and the effect of that service in doubling the ordinary periods allowed, must not be lost sight of.
The form of a notice of motion for the above purpose, will be found in the Appendix of Forms. It should be supported by an affidavit of service of the demand, and of the non-receipt of the copy demanded, within the twenty days now allowed.
On the copy complaint being served, it should, at once, be examined with care, to see whether any inherent defects exist in its structure, which may be made the subjcct of a motion under sec. 160. The nature of the different defects on the score of irrelevancy or redundancy, impeachable by this mode of proceeding, and the course to be adopted for that purpose, have been already fully detailed in the introductory chapter, on the correction of pleadings. The same remark applies to the subject of motions to compel the plaintiff to render his pleading more definite and certain, under the powers of the same section. Of a like nature are the recent amendments in section 122, in relation to the powers now given of interpleader and substitution of one party for another, also fully considered in the same chapter.
Although the complaint be perfect in its form, it may, in certain cases, be deficient in the necessary information for the defendant's guidance, in cases where an account is alleged, and the plaintiff avails himself of the permission conferred by sec. 158, and omits to state the items of it. In this case, the defendant should forthwith demand a copy of such account, under the powers
of that section. For the form of demand, which must be in writing, and served in due form, see Appendix. If the complaint be verified, the copy account, or bill of particulars, must be verified also; (see same section :) and, if this be omitted by the plaintiff, the defendant should give immediate notice of the defect to the plaintiff's attorney, and return the defective paper. See Laimbeer v. Allen, and other cases previously cited, with reference to the return of defective papers, in the introductory chapter, as to the formal requisites of pleading. If the plaintiff omit, in such case, to serve a properly verified copy, or if the copy regularly served, be deficient in the necessary information, the defendant should apply, in the usual manner, for an order, requiring the plaintiff to render a further and more definite account. (See same section.) The case of Wiggins v. Gaus, 3 Sandf. S. C. R. 738; 1 C. R. (N. S.) 117, though not directly in point, will afford an indication as to what the court will consider as clearly an insufficient compliance with such a demand. If the plaintiff omit to comply with the demand at all, and the exclusion of evidence of the account be not sufficient for the defendant's purpose, he should then apply to the court for a special order upon the subject, under the last clause of the section above referred to ; which order would, doubtless, be made, as of course, on proof of the demand, and of the plaintiff's non-compliance, and it would be wise to make a general stay of proceedings a part of the order so asked for.
The Code of 1849 was defective, in confining the defendant's right, in such respects, to cases in which an account was alleged in the complaint. The recent amendment cures this defect, and the defendant may now, in all cases, apply to the court, that the plaintiff may be ordered to furnish a bill of par. ticulars. Wherever, therefore, the statement of the plaintiff's case is too general, and the details require to be given, in order to enable the defendant to meet that case in a proper manner, he should apply forth with for an order of this description, which may be obtained ex parte, and without any further evidence than that afforded by the pleading itself; and, if the