Dyas v. Keaton

• Citation: 3 Mont. 495
• Parties: DYAS, respondent, v. KEATON, appellant.
• Decision Date: 31 August 1880
• Court: United States State Supreme Court of Montana

3 Mont. 495

DYAS, respondent,

v.KEATON, appellant.

Supreme Court of the Territory of Montana.

August Term, 1880.

Appeal from Third District, Meagher County.

THIS action was tried by a jury before WADE, C. J.

Upon the first hearing of this appeal, an opinion was delivered by Mr. Justice KNOWLES, and the judgment of the court below was reversed. BLAKE, J., concurred, and WADE, C. J., dissented. A motion for a rehearing was filed and the cause was reargued at a subsequent term upon the questions referred to in the opinion. The authorities on which the original opinion was based are contained in the appellant's brief.

E. W. & J. K. TOOLE, for respondent.

Appellant appeared voluntarily and answered, and went to trial on the merits and thereby waived any defect in the summons. The substantial rights of appellant have not been affected by the summons. If appellant desired to take advantage of the error in the summons, he should have appealed from the judgment thereon, and not appeared and answered. Smith v. Curtis, 7 Cal. 587;Gale v. Tuolumne W. Co., 14 Id. 28.

The cases relied on by this court in the first opinion are not analogous to that under consideration. The appellant answered and gambled for a verdict, and it is too late to say the summons will not support the judgment.

Under the Civil Practice Act, the court must disregard errors or defects which do not affect the substantial rights of the parties. Civ. Pr. Act, § 117. Appellant was not forced to a trial, and the cause was not tried for one year after the ruling on the motion to quash the summons. So far as his substantial rights are concerned, he is in the same position as he would have been if the summons had been regular. Sloan S. Mill v. Guttshall, 3 Col. 11;Freas v. Engelbrecht, Id. 377;Fleeson v. Savage S. M. Co., 3 Nev. 157; Caples v. Central P. R. Co., 6 Id. 268; Grand Chute v. Winegar, 15 Wall. 355;Chambers Co. v. Clews, 21 Id. 317.

Appellants appeared voluntarily and demurred to the complaint. No appeal was taken from the judgment, and the ruling on the summons was not reviewable by this court. A new trial can only be granted when the substantial rights of the aggrieved party are affected. Civ. Pr. Act, § 233. Appellant should file an affidavit showing that he had been prevented from having a fair trial. Civ. Pr. Act, § 234. Appellant has not been injured and the merits of the controversy are against him. The only thing involved is the time the appellant should have to frame issues and prepare for trial. He was content with this.

WOOLFOLK & BULLARD, for appellant.

The deductions by respondent from Smith v. Curtis, 7 Cal. 587, are not warranted by the decision therein. The question in Gale v. Tuolumne W. Co., 14 Cal. 28, relates to demurrers.

Appellant never waived the errors in the summons, and the first decision of this court was correct. Deidesheimer v. Brown, 8 Cal. 339;Lyman v. Milton, 44 Id. 634;Kent v. West, 50 Id. 185. These cases are analogous to that at bar. It was not necessary for appellant to appeal from the decision of the court on the motion to quash the summons before trial. These decisions were made under the same sections of the Civil Practice Act as those relied on by respondent.

Appellant excepted to the order of the court affecting the summons, and his subsequent appearance to prevent a default was not voluntary.

This court cannot on this hearing consider the question of jurisdiction raised by respondent, and the right to appeal from the ruling on the motion to quash the summons cannot be inquired into.

GALBRAITH, J.

This is a rehearing upon the question of whether or not the court below erred in overruling a motion to quash the summons; and also, if such action was erroneous, whether or not the judgment against the defendant should be reversed by reason of this error.

The action was for slander and brought to April term, 1876. The summons contained a notice that if the defendant failed to appear and answer the complaint, as required therein, the plaintiff would take judgment against him for the sum claimed in the complaint, and the costs of suit. The defendant appeared specially and moved to quash the summons for the following reasons: First. “That the above notice was not such as is required by law.” Second. “That there is a total variance between the summons and the complaint in that the complaint is for unliquidated damages and not upon contract, and the notice contained in the summons should have been in conformity with the second subdivision of section 32 of the Civil Practice Act of Montana Territory * * * instead of the first subdivision of said section.” This motion was overruled. The defendant then demurred, which being overruled, he filed his answer. The cause was then continued at the instance of the defendant until the next term, being the April term, of the court for 1877. On the 24th of February, 1877, in pursuance of a stipulation made with the plaintiff, the defendant filed an amended answer. At the April term, 1877, all of the amended answer except the general denial and prayer was stricken out on motion, and the next day a second amended answer filed. To this a motion to strike out was made which was overruled, whereupon the plaintiff replied. The cause was then tried.

There was a verdict and judgment thereon for the plaintiff.

A motion for a new trial was made which was refused. The defendant then appealed. There were several assignments of error, among which was the action of the court in overruling the above motion to quash the summons. The appeal was heard at the January term of the supreme court, 1879, and at the same term the judgment in the court below was reversed on the sole ground that it was error to overrule the motion to quash the summons. The rehearing is, therefore, upon this point alone.

1. The first question presented for our determination is as to whether or not the court erred in refusing to quash the summons. Section 28 of the Civil Practice Act required that “civil actions in the district courts * * * shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon.” Section 32 of the same act also provided that “there shall also be inserted in the summons a notice in substance as follows: First. In an action arising on contract for recovery only of money, that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint. Second. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court for the relief demanded therein.” This being an action for slander the second form of notice should have been in substance inserted in the summons. Although the language used by the legislature in this section, viz.: “there shall also be inserted in the summons a notice, in substance as follows:” and also, the requirement in section 30 of what the summons shall state, would seem to contemplate that the summons was complete without such notice. Yet the language in section 32 is itself mandatory. The notice mentioned therein is expressly required by the law-making power to be inserted in substance in the summons.

It is not the province of courts to inquire into the expediency or necessity of legislative action, but to see that substantial compliance is made with its requirements when they do not contravene common right or the fundamental law. No more, so far as obedience to the law is concerned, should there be a failure to observe this mandate requiring a particular kind of notice to be inserted in the summons than any other requirement of the legislature, in relation thereto. The opinions of the courts of those States whose Practice Acts contain the same or a similar provision, so far as we have had access thereto, unite in maintaining that a failure to insert the notices as required is such an irregularity or informality as that a summons so defective will not sustain a judgment by default. Porter v. Hermann, 8 Cal. 619.

The defendant may appear for the purpose of making a motion to quash such defective summons, and for that purpose alone. The motion to quash the summons was made at the earliest opportunity. There was no express or implied waiver of the informality or irregularity before the motion to quash was made. We must, therefore, conclude that it was error in the court below to overrule the motion to quash the summons and that the same should have been sustained.

2. Had the appellant appealed from a judgment entered against him, upon the overruling of the motion to quash the summons without proceeding further in the action, and stood upon this error alone, our inquiry would be now closed and such judgment be set aside.

In view, however, of the subsequent proceedings in the cause, our next investigation will be in relation to whether or not the action of the court in overruling the above motion was prejudicial to the substantial rights of the appellants, and if not so prejudicial, whether or not, in view of such further proceedings, the judgment should be reversed by reason of such error.

One of the principal objects of the adoption of the Code Practice was to avoid the technicalities of the common-law procedure, by which it was claimed that justice was often defeated. This was certainly a most laudable as well as desirable object. The practical spirit of the age, which will not brook trifling in business affairs, and whose principal aim is utility, demands that courts should endeavor to secure the attainment of this avowed design in the adoption of the Code. It is the general rule now prevailing in the courts, that wherever and whenever substantial justice is secured, a mere technical error, which is harmless in its character, and which has worked no injury, will not be permitted to defeat or annul the final conclusion or consummation of judicial proceedings.

When a party has not been deprived of a...