James River Nat. Bank v. Haas

• Decision Date: 17 August 1944
• Docket Number: 6927.
• Citation: 15 N.W.2d 442,73 N.D. 374
• Court: North Dakota Supreme Court

15 N.W.2d 442

73 N.D. 374

JAMES RIVER NAT. BANK v. HAAS.

No. 6927.

Supreme Court of North Dakota

August 17, 1944

Syllabus by the Court.

1. A summons in district court is the notice given by the plaintiff to the defendant in statutory form requiring the defendant to answer the complaint in the manner and form prescribed by statute.

2. Among the requisites of Sec. 7421 of the Comp.Laws to be set forth in the summons is 'the court in which the action is brought.' 3. Under the authority given by Sec. 7482 of the Comp.Laws, the district court 'may * * * in furtherance of justice and on such terms as may be proper amend' a summons by correcting a mistake made in the name of the court in which the action is brought.

4. When, in a motion made in district court to amend the summons issued and served, it is claimed the plaintiff made a clerical error in the name of the court in which the action is brought, by stating the name 'In County Court' whereas the purpose and intent was to specify 'In District Court,' the issue arising thereon becomes a matter of fact to be determined by the district court.

5. To aid the court in determining this question of fact recourse may be had to the complaint issued and served with the summons, and when such complaint shows the court therein specified is the district court and the cause of action set forth in the complaint is recovery on a promissory note in an amount far beyond the jurisdiction of the county court, and the exclusive and original jurisdiction of which is in the district court, and it further appears that the error in the name of the court was a clerical mistake and could not mislead the defendant because of the time given to answer, the amount involved, and the court as specified in the complaint, the court should allow the amendment of the summons in furtherance of justice.

6. In determining whether the amendment sought is in furtherance of justice, the court should take into consideration the nature of the cause of action and that if the action be dismissed the statute of limitations will intervene to defeat the plaintiff's claim.

7. In the case at bar, it is shown: That a summons and complaint were issued and served upon the defendant to recover upon a promissory note in excess of two thousand dollars; that by a clerical error the plaintiff, in issuing the summons specified the name of the court in which the action was brought as the county court; that in truth and fact he intended to specify the court as the district court and thus bring his action in that court; that the complaint served with the summons showed the action was brought in the district court and was for an amount beyond the jurisdiction of the county court and of such character as was within the original and exclusive jurisdiction of the district court; and it being further shown that in case the action be dismissed, the plaintiff's cause of action would be barred by the statute of limitations. From this, it is held: That the district court erred in refusing to permit an amendment of the summons so as to show the court in which the action was brought to be the district court and therefore the district court is required to permit the amendment upon such terms as may be just.

Knauf & Knauf, of Jamestown, for plaintiff and appellant.

Rittgers & Hjellum, of Jamestown, for defendant and respondent.

BURR, Judge.

On December 10, 1943, the plaintiff issued a summons as follows:

"State of North Dakota, County of Stutsman, ss.

In County Court

The James River National Bank, Plaintiff,

vs.

Adolph Haas, Defendant.

Summons.

"The State of North Dakota to the Above Named Defendant:

"You are hereby summoned to answer the complaint in this action which is hereto attached and herewith served upon you, and to serve a copy of your answer upon the subscribers hereof 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 December 10th, 1943.

"Knauf & Knauf

"Attorneys for Plaintiff,

"Office and Postoffice Address:

"124 First Street East,

"Jamestown, North Dakota."

The complaint that was attached thereto is entitled:

'State of North Dakota, County of Stutsman, ss.

'In District Court, Fourth Judicial District.

The James River National Bank, Plaintiff,)

v.

Adolph Haas, Defendant)' The action is one to recover on a promissory note for $2321.55 with annual interest at seven per cent, executed and delivered by the defendant to the plaintiff September 16, 1936, due September 1, 1937. The complaint alleges the note remains unpaid except for a payment of $137.64 made on December 18, 1937.

Such summons and complaint were served upon the defendant on December 11, 1943. December 21, 1943, defendant made a special appearance in the county court, objecting to the jurisdiction of the court in the action and served notice of this special appearance upon the plaintiff. Thereupon the plaintiff moved the district court of Stutsman County for an order to show cause why it should not be permitted to amend the summons to show the action was pending in the district court instead of the county court, basing its application upon the pleading served, the affidavit of John Knauf, one of the counsel for the plaintiff, and the affidavit of Anna Clark, his stenographer and typist. These affidavits show the intent to commence the action in the district court, that the complaint was correctly prepared and entitled in the district court and that after the complaint had been thus prepared it was delivered to the typist who at that time was working on documents entitled 'In the County Court' and inadvertently typed the summons to show 'In County Court' instead of 'In District Court, Fourth Judicial District'; that this error was committed by mistake and inadvertence, and contrary to the order of plaintiff and his counsel. The typist, in her affidavit, says the phrase, 'In County Court' was typed by her because she had been immediately therebefore 'printing documents and papers for and in the County Court * * * and inadvertently and through error entitled the summons * * * in the County Court instead of in the District Court.'

The district court issued the order to show cause, setting the hearing for January 17, 1944. The defendant made a special appearance 'for the sole purpose of objecting to the jurisdiction of the court over his person,' basing this objection upon the following grounds:

"1. That the above named District Court has no jurisdiction over this defendant.

"2. That no action is pending by which either the above named court or the County Court of Stutsman County has ever acquired jurisdiction over this defendant. Consequently the District Court cannot bring to life as of a previous date a jurisdiction which never existed.

"3. No summons in the above entitled purported action has ever been served upon this answering defendant.

"4. There is no procedure provided by law by which a suit commenced in the County Court can be transferred to the District Court.

"5. The proposed amendment is not an amendment as defined by law; but is a procedure which, if allowed, would be an arbitrary assumption of jurisdiction by the District Court without the issuance or service of a summons, and would amount to a denial of due process of law.

"6. In the pretended action in County Court referred to in Plaintiff's motion and in said order to show cause, defendant has served an objection to the jurisdiction of the Court, and said action is pending in said County Court for the sole purpose of considering the motion to quash the service of the summons therein because of lack of jurisdiction of said County Court."

The allegations in these supporting affidavits are not controverted--either in the record or on argument--and we accept them as true. Plaintiff had no intention of commencing his action in County Court.

On the hearing of the motion the district court ruled it had no jurisdiction to issue the order to show cause, that it had no power or authority to permit the amendment desired, and therefore it denied the motion. Judgment was entered upon this order dismissing the case and from the order and judgment of dismissal plaintiff appeals.

Much is said about the jurisdiction of the district court. It is the district court that has sole original jurisdiction of such an action as this, not the county court. The district court had the judicial power to inquire into its jurisdiction over the parties, and to this end it issued its order to show cause. As we said in Christenson v. Grandy et al., 46 N.D. 418, 426, 180 N.W. 18, 21, 'It is difficult to lay down precise rules, upon the subject of jurisdiction, by which every case can be clearly and certainly determined.' Therein we quote this statement of Chief Justice Shaw: 'To have jurisdiction is to have power to inquire into the facts and apply the law.' Jurisdiction is the power to hear and determine the controversy involved; and to determine whether the summons was of such a character as to give the defendant the notice required by the statute.

'Every court has judicial power to hear and determine the question of its own jurisdiction, both as to parties and as to subject matter, and necessarily does so by proceeding in the cause.' State ex rel. Goodrich Company et al. v. Trammell et al., 140 Fla. 500, 501, 192 So. 175, 177. See also Kaiser v. Kaiser, 178 Ga. 355, 366, 173 S.E. 688, 694.

Much of the confusion in this case arises over the character of a summons. A summons, under our code of procedure, is not a process in the old sense of being a writ issued by the court. The summons is just what it implies....