Hagen v. Gresby

• Decision Date: 13 June 1916
• Citation: 159 N.W. 3,34 N.D. 349
• Court: North Dakota Supreme Court

159 N.W. 3

34 N.D. 349

E. O. HAGEN v. NELS O. GRESBY

Supreme Court of North Dakota

June 13, 1916

Appeal from the County Court of Ward County, Murray, J.

Proceedings to set aside and declare null and void a judgment obtained by default. Judgment for defendant. Plaintiff appeals.

Reversed.

Reversed and remanded.

F. B Lambert, for appellant.

If it is necessary, under our statute, for an attorney to write his name to a summons with pen and ink, it is just as necessary for him to so write his address thereon, for both are equal requisites under the law. Comp. Laws 1913, §§ 7421, 8944.

The object of our statutes upon this subject is to give to a defendant notice of the pendency of the action, and where the attorney's name and address are typewritten on the summons by his direction, this is a sufficient compliance with the law. Wheeler v. Castor, 11 N.D. 347, 61 L.R.A. 746, 92 N.W. 381.

The term "signature" includes any name, mark, or sign intended to and which does authenticate the instrument in writing. Comp. Laws 1913, § 10366.

"Writing" includes "printing" or "typewriting." Comp. Laws 1913, § 10367; Ligare v. California Southern R. Co. 76 Cal. 610, 18 P. 777; Hamilton v State, 103 Ind. 96, 53 Am. Rep. 491, 2 N.E. 299; 1 Ops. Atty. Gen. 670; Ardery v. Smith, 35 Ind.App. 94, 73 N.E. 840; Herrick v. Morrill, 37 Minn. 250, 5 Am. St. Rep. 841, 33 N.W. 849; Henshaw v. Foster, 9 Pick. 312; Black's Law Dict.; Wild Cat Branch v. Ball, 45 Ind. 213; Davis v. Shields, 26 Wend. 341; Webster's New Int. Dict.; Mezchen v. More, 54 Wis. 214, 11 N.W. 534, 1 Am. Rul. Cas. 154, 157, note; Loughren v. Bonniwell, 125 Iowa 518, 106 Am. St. Rep. 319, 101 N.W. 287; Cummings v. Landes, 140 Iowa 80, 117 N.W. 22; Carton Toy Co. v. Buswell Lumber & Mfg. Co. 150 Wis. 341, 136 N.W. 147, and cases cited; Zacharie v. Franklin, 12 Pet. 161, 9 L.Ed. 1035; Shank v. Butsch, 28 Ind. 19; Den. ex dem. Compton v. Mitton, 12 N.J.L. 70; Vines v. Clingfost, 21 Ark. 312; Hawkins v. Chase, 19 Pick. 504; Brown v. Butchers' & D. Bank, 6 Hill, 443, 41 Am. Dec. 755; Harvey v. Chicago & N.W. R. Co. 148 Wis. 391, 134 N.W. 839; Bennett v. Brumfitt, L. R. 3 C. P. 28, 37 L. J. C. P. N. S. 25, 17 L. T. N. S. 213, 16 Week. Rep. 131, Hopw. & P. 407; Berryman v. Childs, 98 Neb. 450, 153 N.W. 486; Dreutzer v. Smith, 56 Wis. 292, 14 N.W. 465; Horton v. Kelly, 40 Minn. 193, 41 N.W. 1031; Nye v. Lowry, 82 Ind. 316; Croy v. Busenbark, 72 Ind. 48.

The signature to a note by a rubber stamp is sufficient. Carroll v. Mitchell-Park Mfg. Co. 60 Tex. Civ. App. 263, 128 S.W. 446; Weston v. Myers, 33 Ill. 424; Grieb v. Cole, 60 Mich. 397, 1 Am. St. Rep. 533, 27 N.W. 579; Hamilton v. State, 103 Ind. 96, 53 Am. Rep. 491, 2 N.E. 299.

Defendant's application constituted a general appearance, and all the court had authority to do was to open up the case for trial on its merits. Comp. Laws, 1913, §§ 7438, 7485; Gans v. Beasley, 4 N.D. 140, 59 N.W. 714; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Simensen v. Simensen, 13 N.D. 305, 100 N.W. 708; Burdette v. Corgan, 26 Kan. 102; Cohen v. Trowbridge, 6 Kan. 385; Raymond v. Nix, 5 Okla. 656, 49 P. 1110.

Halvor L. Halvorson, for respondent.

The signing and issuing of a summons in district court in this state means something more than the use of a stamp or sign. It imports individuality,--an act performed by the attorney. A summons is court process, and has an important office or function to fulfil. Comp. Laws 1913, § 11177; Mills v. Howland, 2 N.D. 30, 49 N.W. 413.

An appearance for a motion to vacate a void judgment, coupled with a request for permission to answer, does not amount to a general appearance. Simensen v. Simensen, 13 N.D. 305, 100 N.W. 708; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Raymond v. Nix, 5 Okla. 656, 49 P. 1110.

OPINION

BRUCE, J.

This is an appeal from a judgment of the county court of Ward County, setting aside and declaring null and void a judgment entered and obtained by default. Two questions are presented: whether the summons to which the name of the plaintiff's attorney was printed with a typewriter, and which was not subscribed by said attorney in his own handwriting, was a nullity, and whether, if a nullity, the defendant entered a general appearance in his motion to set aside the judgment.

The summons was in the regular statutory form. At the bottom there was written in typewriting "F. B. Lambert, attorney for plaintiff, P. O. Address, Minot, North Dakota."

The order setting aside the judgment was as follows: "That said judgment be opened up and vacated and set aside, and that all proceedings had thereunder be likewise vacated, annulled, and set aside, and that said judgment is void, a nullity, and of no force or effect whatsoever, the same having been entered by default in an action wherein no summons had been issued as provided by law."

On the hearing on this motion the plaintiff produced the affidavit of F. B. Lambert, his attorney, which, among other things, stated: "That both the summons and complaint in this action were properly subscribed by affiant in the usual and ordinary way; that the signature of affiant made to said summons and complaint was made in typewriting by Wade A. Beardsley, the clerk and associate of affiant, at affiant's request and instruction; and the same was adopted by this affiant as his signature, and acted upon as such, and was acted upon also by the defendant; that this affiant has been an active practitioner in this court and in all the courts of the state, both state and Federal, since April, 1896, and has never, during said twenty years, ever signed a summons with pen and ink; that, previous to that time, this affiant was employed as stenographer and clerk for the law firm of Messrs. McCumber & Bogart, at Wahpeton, North Dakota, for a number of years, and during all said time signed with a typewriter every single summons issued out of said office in the name of said firm of McCumber & Bogart; that in all proceedings in the supreme court of this state the affiant has invariably caused his name to be signed by his then clerk or stenographer in affiant's name; that numerous judgments, both default and in contested cases, have been entered in this court and in the district courts of this state on summons signed in this way by the name of this affiant; that to open up the judgment entered in this case and allow the defendant to answer would be a great injustice to the plaintiff, not only in expense, but in time and delay."

The summons was not a nullity. Section 8944 of the Compiled Laws of 1913, provides that "the summons must contain the title of the action, specifying the court in which the action is brought, the name of the parties to the action, 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. The summons shall be substantially in the following form, the blanks being properly filled." This is the section which is applicable to procedure in the county court. The requirements in regard to the summons, however, in the district court, are identically the same, save for the days given in which to answer. See §§ 7421, 7422, and 7423 of the Compiled Laws of 1913, and which, now, under the amendment made by chapter 62 of the Laws of 1915, are the same, even as to the days in which to answer.

Under all these statutes it is required that the summons "shall be subscribed by the plaintiff or his attorney, who must add to his signature his address." The question, therefore, is whether this statute is complied with when the name of the attorney is attached by his clerk at said attorney's request and instruction, and in accordance with a general custom which prevails in such office.

We can see much in the argument that the subscription should be made in the actual handwriting of the plaintiff or his attorney, and yet the general practice which prevails in this state, the injury to business and to land titles that would follow such a holding, as well as the wording of the several statutes, must lead us, as it has led practically all of the courts of the country that have passed upon the question, to a different conclusion.

Section 10,366 of the Compiled Laws of 1913 provides that "the term 'signature' [as used in the Penal Code] includes any name, mark or sign, written with intent to authenticate any instrument or writing;" while § 10,367 provides that "the term 'writing' including printing and typewriting." Forgery, therefore, can be committed of a printed signature as well as a written one, or by printing a signature as well as by writing it. In the case of Ligare v. California Southern R. Co. 76 Cal. 610, 18 P. 777, the court says: "It is said that the summons was not signed by the clerk. The statute requires that it should be so signed. (Code Civ. Proc. § 407.) But we think the affixing by the clerk of the seal of the court to a form to which was appended his printed name was an adoption of the printed signature which, for the purpose in hand, was sufficient."

In the case of Williams v. McDonald, 58 Cal. 527, the court says: "This is an appeal from a judgment and order denying a motion for a new trial in a street assessment case. The appellant Quackenbush presents three points for our consideration; viz., the resolution of intention was not signed by the clerk. Upon this point the testimony of the clerk of the board of supervisors was: 'I have adopted a form for my signature; there is a printed signature adopted by me for all resolutions and orders. The name "John A. Russell" is, as you see, printed at the bottom of the paper. I never actually signed it, but I adopted the printed signature. I always kept blanks for resolutions in my office, with...