Jones v. Standard Lumber Co.

• Decision Date: 21 September 1926
• Docket Number: Case Number: 16611
• Citation: 121 Okla. 186,249 P. 343,1926 OK 732
• Parties: JONES et al. v. STANDARD LUMBER CO.
• Court: Oklahoma Supreme Court

1926 OK 732

249 P. 343

121 Okla. 186

JONES et al. v. STANDARD LUMBER CO.

Case Number: 16611

Supreme Court of Oklahoma

Decided: September 21, 1926

Syllabus

¶0 Judgment--Validity--Clerical Error Fixing Answer Day in Summons.

A summons in an action for money, regular in every respect except that the clerk erroneously fixed the answer day therein the same as the date of said summons, and which was served personally upon the defendants, is not void, and the overruling of a motion to vacate a judgment based on such summons is not error.

Error from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by Standard Lumber Company against L. J. Jones et al. Judgment by default was rendered in favor of plaintiff. From an order denying defendants' motion to vacate said judgment, defendants bring error. Affirmed.

Morris & Tant, for plaintiffs in error.

Shirk, Danner & Mills, for defendant in error.

MASON, J.

¶1 The defendant in error, Standard Lumber Company, hereafter referred to as plaintiff, commenced this action for money judgment and foreclosure of a materialman's lien against the plaintiffs in error, L. J. Jones, known as Lanzy Jones, and Mrs. Lanzy Jones, hereafter referred to as defendants.

¶2 Summons was issued and served personally upon each of the defendants and return of service made before the return day. The summons was regular in every respect, except that the answer day named in the summons was fixed as October 7, 1921, the date of the summons, instead of November 7, 1921, the date fixed as answer day in the praecipe for summons. The summons was dated October 7, 1921, the return day was October 17, 1921, and it was served October 13, 1921.

¶3 On December 28, 1921, the defendants never having appeared or pleaded, a judgment by default was rendered against them. Thereafter, on February 9, 1924, the defendants filed their motion to vacate said judgment, alleging that the same was void, for the reason that said summons commanded the defendants to appear and answer on an impossible date, and that the court was without jurisdiction. The defendants issued no process to the plaintiff, but contented themselves with attacking said judgment by motion under section 817, C. O. S. 1921, which provides that a void judgment may be vacated at any time on motion. Said motion was overruled on January 24, 1925, and the defendants have duly perfected their appeal to this court.

¶4 For reversal, it is contended that the fixing of the answer date prior to the service of summons rendered not only the summons void, but also the judgment rendered thereon.

¶5 The form of summons in such an action is prescribed by section 233, C. O. S. 1921, as follows:

"The summons shall be issued by the clerk, upon a written praecipe filed by the plaintiff; shall be under the seal of the court from which the same shall issue, shall be signed by the clerk, and shall be dated the day it is issued. It shall be directed to the sheriff of the county, and command him to notify the defendant or defendants, named therein, that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at a time stated therein, or the petition will be taken as true and judgment rendered accordingly; and where the action is on contract for the recovery of money only, there shall be indorsed on the writ the amount, to be furnished in the praecipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs."

¶6 The summons in the case at bar conformed, in every respect, to this section of the statutes. It was issued under the seal of the court, was signed by the clerk, dated the day it was issued, was directed to the sheriff, commanded him to notify the defendants that they had been sued and must answer the petition filed by the plaintiff, giving its name, and the time for answer was stated therein, and it bore the indorsement of the amount for which judgment would be taken. The time for answer is provided by section 284, C. O. S. 1921, as follows:

"The answer * * * shall be filed within 20 days after the day on which the summons is returnable. * * *"

¶7 The defendants were advised, personally, of everything which the statute required the summons to contain. It is true the summons did not name the correct day for answer as provided by section 284, supra. The only respect in which the defendants could possibly be prejudiced was the time in which they might answer. Notwithstanding the erroneous date in the summons, they could have secured the full time given by section 284, supra, by appearing specially and moving to quash the summons or by asking additional time to answer. The summons served upon them gave them all the other information relative to the suit. The record discloses that the judgment was not rendered until long after the expiration of the statutory time for answering.

¶8 The statutes of Kansas are identical...