Al G. Barnes Amusement Co. v. Dist. Court in & for Ramsey Cnty., Second Dist.

• Citation: 66 N.D. 727,268 N.W. 897
• Decision Date: 20 August 1936
• Docket Number: No. 6432.,6432.
• Parties: AL G. BARNES AMUSEMENT CO. v. DISTRICT COURT IN AND FOR RAMSEY COUNTY, SECOND DISTRICT. BUTTZ v. ROBINSON et al.
• Court: United States State Supreme Court of North Dakota

66 N.D. 727

268 N.W. 897

AL G. BARNES AMUSEMENT CO.

v.DISTRICT COURT IN AND FOR RAMSEY COUNTY, SECOND DISTRICT.

BUTTZ

v.ROBINSON et al.

No. 6432.

Supreme Court of North Dakota.

Aug. 20, 1936.

Syllabus by the Court.

1. The summons in a civil action is a process or in the nature of process.

2. The objects of the summons are to apprise the defendant that an action has been commenced against him by plaintiff and warn him that he must answer or appear within a time and at a place named to make such defense as he has, and in default of his so doing a judgment will be taken against him for the relief demanded in the complaint.

3. Section 7421, Comp.Laws 1913, provides that the summons must contain the title of the action, specifying the court in which the action is brought, the names of the parties, the name of the county in which the plaintiff desires the trial, and be subscribed by the plaintiff or his attorney, who must add to his signature his address, specifying a place within the state where there is a post office.

4. Section 7422, Comp.Laws 1913, provides that the summons exclusive of the title of the action and the subscription must be substantially in the form therein prescribed.

5. Section 7422, Comp.Laws 1913, is directory only and any form of summons which meets the requirements of section 7421 and accomplishes the objects of a summons as set forth in paragraph 2, supra, is sufficient to confer jurisdiction upon the court wherein the action is brought when properly served upon the defendant.

6. The summons in the instant case is examined, and it is held, for reasons stated in the opinion, that it fulfills the requirements of a summons and by its proper service conferred jurisdiction over the person of the defendant upon the court.

Action by Charles W. Buttz against George Robinson and the Al G. Barnes Amusement Company, wherein the Al G. Barnes Amusement Company filed an application for a supervisory writ to be directed to the District Court, in and for the County of Ramsey, Second Judicial District, State of North Dakota.

Writ denied.

Traynor & Traynor, of Devils Lake, for petitioner.

F. T. Cuthbert and Sinness & Duffy, all of Devils Lake, for respondent.

NUESSLE, Judge.

The petitioner, the Al G. Barnes Amusement Company, seeks to invoke the exercise by this court of its power of superintending control pursuant to the provisions of section 7339, Comp.Laws 1913, and section 86 of the Constitution of North Dakota, and in that behalf prays for the issuance of a supervisory writ to be directed to the district court of Ramsey county.

The petitioner is a foreign corporation operating a circus and wild animal show. S. L. Cronin is its managing agent. Charles W. Buttz, the plaintiff in the action out of which this proceeding arose, is a citizen of North Dakota residing at Devils Lake, N. D. On June 13, 1936, plaintiff caused a summons to be issued in an action wherein he sought to recover damages for an assault made upon him by the defendant corporation and its agents. Omitting the venue and title, the summons was in the following form, to wit: “You are hereby summoned to answer the complaint in this action which will be filed in the office of the Clerk of the District Court in and for said Ramsey County with the Clerk thereof, and to serve a copy of your answer upon the subscriber within thirty days after the service thereof, exclusive of the day of service, and in case of your failure to appear or answer judgment will be taken against you by default for the relief demanded in the complaint.”

The summons was subscribed by plaintiff's attorney who added to his signature his address, specifying a place within the state where there is a post office. But the summons was not dated. It was served upon Cronin, the defendant's managing agent within the state of North Dakota, on June 27, 1936. Thereafter, the defendant appearing specially procured the issuance of an order to show cause why the summons and service thereof should not be set aside and the plaintiff prohibited from proceeding further in the district court. On the return day, after hearing, the order to show cause was discharged and the defendant was granted 30 days from the date of the service of the summons on June 27 within which to answer the complaint. Thereupon, the defendant made the instant application for a supervisory writ on the ground that the summons was defective and void, and that the district court had acquired no jurisdiction of the defendant by the service thereof.

No question is raised as to the propriety of the instant proceeding. Petitioner and respondent join in requesting the court to pass upon and determine the issues made on the petitioner's application and the respondent's return. So the only question before the court at this time is as to whether the summons served upon Cronin, the managing agent of the defendant corporation on June 27, was so deficient in form and content as to be ineffective to confer jurisdiction over the defendant on the district court of Ramsey county.

The following sections of the Code of Civil Procedure, North Dakota 1913 Comp.Laws, are pertinent, to wit:

Section 7420. “Civil actions in the courts of this state shall be commenced by the service of a summons.”

Section 7421. “The summons must contain the title of the action, specifying the court in which the action is brought, the names of the parties to the action and the name of the county in which the plaintiff desires the trial, and shall be subscribed by the plaintiff or his attorney, who must add to his signature his address, specifying a place within the state where there is a post office.”

Section 7422. “The summons exclusive of the title of the action and the subscription must be substantially in the following form, the blanks being properly filled:

The state of North Dakota to the above named defendant:

You are hereby summoned to answer the complaint in this action and to serve a copy of your answer upon the subscriber within thirty days after the service of this summons upon you, exclusive of the day of service; and in case of your failure to appear or answer judgment will be taken against you by default for the relief demanded in the complaint.

Dated .......”

Section 7423. “A copy of the complaint need not be served with the summons. In such case the summons must state that the complaint is, or will be, filed with the clerk of the district court in the county in which action is commenced, and if the defendant within thirty days thereafter causes notice of appearance to be given and in person, or by attorney, demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof must, within thirty days thereafter, be served accordingly, and after such service the defendant has thirty days to answer, but only one copy need be served on the same attorney. Where the summons states that the complaint is or will be filed with the clerk of court and the same is not so filed within thirty days after the date of such summons, the action will be deemed discontinued.”

Section 7482. “The court may, before or after judgment in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”

Section 7484. “When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name shall be discovered the pleading or proceeding may be amended accordingly.”

Section 7485. “The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

The petitioner in support of its application urges that the summons is defective in substance for the reason that it fails to comply with the requirements of section 7422, in that it recites that the defendant is required to answer the complaint which will be filed in the office of the clerk of district court within 30 days after the service of such complaint upon the defendant instead of “within thirty days after the service of this summons” upon the defendant as prescribed in the form set out in section 7422, and, further, for the reason that the summons as served upon the defendant was not dated.

Section 7421 prescribes what the summons must contain. Whether or not this section is mandatory we need not now determine. The summons here in question meets all the requirements thus prescribed.

[1][2][3] Now as to section 7422. The wording of the section is that the summons must be “substantially” in the form set out therein. The summons is not a pleading, but is a process or in the nature of process. Follower v. Laughlin, 12 Abb.Prac.(N.Y.) 105. Its object is to apprise the party defendant that the plaintiff in the action seeks judgment against him, and when it fairly appears that he is apprised of that fact the court acquires jurisdiction to render judgment in the action. 2 Wait's New York Practice (2d Ed.) p. 1250, and cases cited. Dunn v. Bloomingdale, 14 How.Prac.(N.Y.) 474. Section 7421 evidently was adopted from the New York Code of Procedure (section 128.) It is first found as section 97 of the Territorial Code of Civil Procedure enacted in 1877, and was codified in the 1887 Dakota Compiled Laws as section 4893. It was put in its present form in the North Dakota Revised Codes of 1895. Section 7422 first appears as section 5248, Revised Codes 1895. It apparently was inserted by the revisers. It is identical with section 418 of...