Martin v. Lindstrom

• Citation: 75 N.W. 1038,73 Minn. 121
• Parties: MARTIN v LINDSTROM.
• Decision Date: 28 June 1898
• Court: Minnesota Supreme Court

73 Minn. 121

75 N.W. 1038

MARTINvLINDSTROM.

Supreme Court of Minnesota.

June 28, 1898.

(Syllabus by the Court.)

The statute provides that the summons in an action in justice's court shall be served “by reading the same to the defendant, and delivering him a copy, if requested.” The summons was served “by reading the same to him, and delivering a copy thereof to him at his request,” except that, in the copy so delivered, the name of the plaintiff was omitted from the proper blank space in such copy. Held, a mere irregularity, which did not render the service void.

Appeal from district court, Hennepin county; James C. Tarbox, Judge.

Action by A. L. Martin against Edward Lindstrom in replevin. Verdict ordered for defendant. From an order denying a new trial, plaintiff appeals. Affirmed.

Charles B. Holmes and Samuel L. Baker, for appellant.

Everett Moon, for respondent.

CANTY, J.

In an action brought in justice's court for the recovery of money, the constable returned that he served the summons on the defendant “by reading to him and delivering a copy thereof to him at his request.” The copy thus delivered to defendant was defective, in this: that the name of the plaintiff therein was omitted from the printed blank, which was in all other respects properly filled out. The defendant therein failed to appear on the return day. Judgment was entered against him. Execution was issued thereon, and levied on his property, which was sold on the execution. Thereafter he brought this action in replevin to recover possession of the property. On the trial a verdict was ordered for the defendant herein, and, from an order denying a new trial, the plaintiff herein appeals.

While such defect in the copy of the summons rendered the service of the summons irregular, in our opinion such service was not void. True, section 4966, Gen. St. 1894, provides that every summons issued by a justice of the peace “shall be entirely filled up, and have no blank either of date or otherwise, at the time of its delivery to an officer to be executed. Every such process which is issued and delivered to an officer to be executed contrary to the provisions of this section, shall be void.” This applies to the original summons issued by the justice, not to the copy, which is usually made by the constable. True, this section may still have some bearing on the question, but it is not controlling. Section 4967 provides that such a summons shall be served “by reading the same to ...