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terms to authorize its entry,” the judgment could not be set aside for irregularity, the words omitted being merely directory, and the authority being to be implied from the confession itself. It was also held that the defendant could not even be heard to object after the lapse of a year, which had occurred, which lapse, of itself, barred all relief for irregularity; 2 R. S. 282, sec. 2. In the same case, a liberal construction was put upon a stipulation binding the plaintiff not to issue execution for a limited period, unless, upon actual examination of the books, &c., of the defendants," he should have good reason to believe himself insecure.” The court refused to set aside the execution though the plaintiffs had not actually examined the books, it appearing clear, from other circumstances, that he had such good
The proceedings preliminary to the bringing of an action in the regular form having thus been considered, we now arrive in due course at the primary proceeding in such action when brought, i. e., the issuing and service of the summons by which it is originally commenced. This process is indispensable for the due bringing of an action in all cases, although, for the purposes of acquiring jurisdiction, and with reference to the statute of limitations, an action may, under peculiar circumstances, be held to have been commenced by the allowance of a provisional remedy, before the summons has been actually served. (See Moore v. Thayer, 6 How. 47; 3 C. R. 176.)
In one case, and one only, the issuing of summons will not only be unnecessary, but unadviseable, and that is with reference to monies collected by an attorney and not paid over on demand, in respect of which an attachment is issuable under the revised statutes. If, instead of issuing such attachment, the client bring an action in the ordinary course, the right to
the former remedy will be held to have been waived, and it cannot be afterwards obtained; Cottrell v. Finlayson, 4 How. 242.
The nature and form of summons are thus indicated by the Code:
$ 128. The summons shall be subscribed by the plaintiff, or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state, to be therein specified, in which thre is a post-office, within twenty days after the service of the summons, exclusive of the day of service.
§ 129. The plaintiff shall also insert in the summons a notice, in substance as follows :
1. In an action, arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint in twenty days after the service of the summons.
2. In other actions, that if the defendant shall fail to answer the complaint, within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint.
It will be seen from these provisions, that the following are indispensable requisites to the regularity of this important process:
1. That the summons should be subscribed by the plaintiff or his attorney.
2. That it should be directed to the defendant.
3. That he should be formally required thereby to answer the complaint in the action.
4. That the place where his answer is to be served should be distinctly specified.
5. That the time within which such service should be made should also be distinctly pointed out.
6. That he should be distinctly warned that, in the event of his not answering, judgment will be taken against him.
7. That the nature of the judgment to be so taken should be distinctly and unmistakably indicated.
With reference to the last of these requisites, the process in question may also be classified into two separate branches, i.e., 1, summons for payment of a money demand, and, 2, summons for relief; the first embracing all actions arising on contract, in
which a fixed and specified amount is sought to be recovered ; and the second, all those of which a contract, either express or implied, does not form the basis ; or where unliquidated damages are claimed, or the relief demanded consists in the performance of some act, or is otherwise of such a nature that it cannot be represented by a fixed and specific money payment.--See form, in appendix, adapted to both cases.
The plaintiff having, under sec. 130, the option as to whether he will or will not serve a copy of the complaint, to accompany the summons in the first instance, the form in question is also adapted to meet this contingency.
In case the complaint is not served, it is requisite, under the provisions of that section, that the summons should state, where it is or will be filed. In ordinary cases a statement to the latter effect will be sufficient, but, where service is made by publication, the previous filing of the complaint is made a condition precedent by the terms of sect. 135; where, too, the title to real property is in any manner in question in the cause, the filing of the complaint in the first instance, is also an advisable preliminary under sec. 132.
It will be observed that, in each of these forms, the name of the court, and also the title of the cause, are inserted in full. It is true that, by the above provisions of the Code, these precautions are not specially required, but neither of them can be safely omitted in any case, and above all, in those where the summons is served by itself, without a copy of the complaint. The omission of the name of the court, in particular, will be a fatal objection. The weight of authority on this subject is conclusive. In Ward v. Stringham, 1 C. R. 118, a summons and copy complaint, so served, were held to be a nullity, and leave to amend was refused. In an anonymous case, 2. C. R. 75, a judgment entered upon a summons so issued, the complaint not being served, was also set aside.
In Dix v. Palmer, 5 How. 233; 3 C. R. 214, the omission in question was held to be “a fatal objection," (though capable of being waived by subsequent acquiescence;) and in, James v. Kirkpatrick, 5 How. 241, 3 C. R. 174, the same view was sustained, and a judgment, entered on such a summons, set aside as irregular, leave to amend being only granted on terms equival. ent to the bringing of a fresh action. Nor is Walker v. Hubbard 4 How. 154, an authority to the contrary, for, in that case,
al? though leave was given to amend, when no court was named
in the summons, still the name "sup. court" was inserted in the complaint itself, (that abbreviation conveying a definite idea, the case being at Albany and not in New York, where it might have given rise to a confusion of terms,) and such leave was only granted, upon terms which showed that the court considered the summons and complaint, as they then stood, to be bad altogether, until such amendment had been made.
The following cases have been decided, with reference to the different requisites to a valid summons as above laid down.
1st, as to subscription.
The subscription of an agent of the plaintiff, not an attorney, is bad, and a summons so subscribed will be set aside. Weare or Weir v. Slocum, 3 How. 397; 1 C. R. 105.
Besides subscribing bis name, and indicating a place where the answer may be served, the attorney, or party so subscribing, must also add his place of residence, or, if he omit to do so, any subsequent papers in the suit may be served on him by mail.--Rule 5 of supreme court.
On the second and third requisites, viz., the direction to the defendant, and the formal requisition to answer the complaint, no question appears as yet to have arisen. Under sec. 176, the suit may be commenced, and the summons served, in a fictitious name, when the real one of the defendant is unknown, being afterwards amended on its discovery.-See Pindar v. Black, 4 How, 95.
With reference to the fourth requisite, the above cited case of Weare v. Slocum is also authority, that the summons, to be regular, must require the copy answer to be served upon the actual subscriber, whoever that subscriber may be. In that case, the summons, subscribed by the agent in the name of the plaintiff, required the answer to be served on "me," meaning the plaintiff, at a certain place therein specified, such place being not the plaintiff's residence, but that of the agent who subscribed in his name, and this direction was held to be clearly bad, on the grounds above stated; though, under the peculiar circumstances of the case, the statute of limitations having run out in the interim, leave was given to amend on terms imposed.
The fifth requisite, i. e., that of the time within which the answer must be served, will be considered in its details hereafter. There can be no question but that a full compliance with this direction of the statute is an indispensable pre-requisite to the regularity of process, and would be so held, though, as yet, the point does not seem to have been made the subject of express decision. The sixth requisite, i. e., the formal notice that judgment will be taken in default of answer, seems also, as yet, to have awakened no question, doubtless in consequence of its having been hitherto complied with in all instances.
On the seventh and last requisite, however, i. e., the terms of that notice, more question has arisen, and the distinction between the two different forms of summons, i.e., the summons for money, and the summons for relief, is one most necessary to be observed.
A summons for relies has been held to be bad, in an action for goods sold and delivered, and judgment was denied, on the ground that the contract was one for the recotery of money only, and should have been sued upon as such. Dillee v. Mason, 1 C. R. 37; 6 L. O. 363.
The converse of this proposition was maintained in Wyant v. Reeves, 1 C. R. 49, where a summons for money was held to be bad, the complaint merely praying for a foreclosure in the usual form.
In Leopold v. Poppenheimer, 1 C, R. 39, and Williams v. Mil. ler, 2 C. R. 55; 4 How. 94, it was ruled that an action for damages for breach of promise of marriage, was, although the damages were unliquidated, an action “ arising on contract for the recovery of money only,” and that, as such, the summons was properly issued in the form of a summons for money.
The authority of Williams v. Miller is also confirmed by Trapp v. The N. Y. & Erie Railroad Company, 6 How. 237; where it was held that an action for damages, in respect of breach of contract, was an action for the recovery of money only, and, as such, fell within subdivision 1.
In Flynn v. The Hudson River Railroad Company, however, below cited, the learned Judge who decided Williams v. Miller, stated that he had never felt satisfied with that decision; and that, although that case and Leopold v. Poppenheimer seemed too clearly within the language of the first subdivision to allow an escape, yet he should not regret to see them re-examined and disapproved. “The rule ought to be, that, when the action is brought for the recovery of a money demand or a sum certain, judgment may be perfected without application to the