Bradey v. Mueller

• Decision Date: 16 December 1908
• Parties: BRADEY v. MUELLER.
• Court: South Dakota Supreme Court

118 N.W. 1035

22 S.D. 534

BRADEY v. MUELLER.

Supreme Court of South Dakota

December 16, 1908

Appeal from Circuit Court, Campbell County.

Action by James G. Bradey against Nick Mueller. From a judgment for plaintiff in the circuit court, on appeal from a judgment of a justice of the peace, defendant appeals. Affirmed.

Frank Alexander and Taubman, Williamson & Herried, for appellant.

CORSON J.

This is an appeal by the defendant from a judgment rendered by the circuit court of Campbell county affirming the judgment of the justice of the peace in favor of the plaintiff.

The assignments of error relied on are as follows: "That the justice court was without jurisdiction to try the case, for the reason that the summons as issued did not comply with the provisions of section 13, Rev. Justice Code, in that it contained a notice that, unless the defendant appeared and answered, the plaintiff would take judgment for a sum certain, instead of containing a notice that the plaintiff would apply to the court for the relief demanded in the complaint. *** That the complaint failed to allege, and the proofs failed to show, that the plaintiff before the commencement of the action, notified the defendant of such damages and the probable amount thereof, as required by section 831 of the Revised Code of Civil Procedure." It is disclosed by the record that on the case being called for trial in the justice's court, the defendant by his attorney appeared specially, and made a motion to dismiss the action on the ground that the purported summons served on the defendant is not in the form required by law, in this: That the said summons so served is in the form of a summons upon a contract for the recovery of money, and not a relief summons as required by law. The summons in the action, omitting the formal parts, is as follows: "You are hereby summoned to appear before me at my office, in the town of Herried, in said county, on the 13th day of April, A. D. 1907, at 10 o'clock a. m., to answer the complaint of the above-named plaintiff, James G. Bradey, who claims to recover of you the sum of seventy-five and no-100 dollars, being for damages done by your horses and cattle to the above-named plaintiff's property in the town of Herried, Campbell county, S. Dak., at various times during the months of February, March and April, by eating & destroying wheat and oats, breaking lumber, stove, etc. You are hereby notified that if you fail to appear and answer said complaint as above required said plaintiff will take judgment against you by default for the said amount of seventy-five & no-100 dollars and _____ cents and interest at _____, per cent from _____ 19___, together with costs and attorney's fees."

It is contended by the appellant that, this being an action for damages alleged to have been committed by the defendant's stock, the summons should have provided that, in case the defendant failed to appear, the plaintiff would apply to the court for the relief demanded in the complaint. Section 13 Rev. Justice Code, provides: "The summons must be directed to the defendant and signed by the justice and must contain: *** A sufficient statement of the cause of action, in general terms to apprise the defendant of the nature of the claim against him. *** In an action on a contract, for the recovery of money or damages only, a notice that unless the defendant so appears and answers, the plaintiff will take judgment for the sum claimed by him, stating it. In other actions a notice that unless the defendant so appears and answers, the plaintiff will apply to the court for the relief demanded. If the plaintiff has appeared by attorney, the name of the attorney must be indorsed on the summons." It will be observed that, when the action arises on a contract for the recovery of money or damages only, a notice is required that, unless the defendant so appear and answer, the plaintiff will take judgment for the sum claimed by him stating it. But the action must be one arising on a contract. It clearly appears from the statement of the cause of action in this case, as contained in the summons, that it was not one arising on contract, but was an action in tort, and in such action the notice must be in the form of a relief summons "that unless the defendant so appear and answer, the plaintiff will apply to the court for the relief demanded," as provided in subdivision 5 above quoted. By section 105 of the Revised Code of Civil Procedure the plaintiff is required to insert in the summons a notice, "in actions arising on contract for the recovery of money only, that he will take judgment for a sum specified therein if the defendant fails to answer the complaint in thirty days after the service of the summons." It will be observed that in that section the word "damage" is omitted, but the meaning of the two provisions are practically the same, as the action either in justice or the circuit court must, as before stated, be an action arising on a contract, while undoubtedly the notice in the summons in the case at bar should have been that the plaintiff would take judgment for the relief demanded, yet we are of the opinion that this omission in the summons was not of such a character as to require a dismissal of the action. It will be observed that the summons stated very fully the nature of the plaintiff's claim. and the defendant is therein clearly notified that the action is one in tort, and not one on contract; and, as the defendant is presumed to know the law, he is presumed to know that the plaintiff is not entitled to a judgment by default in the action, and he could not therefore have, in legal contemplation, been misled by the statement in the summons that judgment by default would be taken in case of his failure to answer. The main object of the summons is to notify the defendant that the plaintiff claims to have a cause of action against him, and that he is required to answer such complaint.

It seems to be generally held by the modern courts that, where a summons in a court of record is served, accompanied by a complaint, the defendant is required to look to the complaint, and not to the summons, for the purpose of determining the cause of action against him, and that a variance between the cause of action as stated in the complaint and the summons will not entitle the defendant to a dismissal of the complaint or...