Mattice v. Babcock

• Decision Date: 27 December 1932
• Docket Number: 5958
• Citation: 52 Idaho 653,20 P.2d 207
• Parties: CELIA MATTICE, Plaintiff, v. WM. A. BABCOCK, Judge of the District Court of the Eleventh Judicial District of the State of Idaho, Defendant
• Court: Idaho Supreme Court

20 P.2d 207

52 Idaho 653

CELIA MATTICE, Plaintiff, v. WM. A. BABCOCK, Judge of the District Court of the Eleventh Judicial District of the State of Idaho, Defendant

No. 5958

Supreme Court of Idaho

December 27, 1932

PROCESS-SUMMONS SUFFICIENCY OF.

1. Primary purpose of summons and its service is to give defendant notice of pendency of action so that he may have opportunity to be heard.

2. Summons properly captioned and accompanied with copy of complaint in suit to foreclose mortgage held to confer juris- diction upon proper court, though summons directed defendant to appear in court for different county (C. S., secs. 6661, 6728).

3. Substantial compliance with statute relating to process is all that is required.

4. Court must disregard any error or defect in pleadings or proceedings that does not affect the substantial rights of the parties (C. S., sec. 6728).

5. Where summons is not void but, at most, only voidable, its service confers upon the court jurisdiction of defendant's person (C. S., sec. 6728).

6. In suit to foreclose realty mortgage, copy of complaint served with summons may be examined to explain omission or ambiguity in body of summons concerning court in which action is pending.

Original proceeding for Writ of Mandate. Alternative writ issued. Motion to quash and demurrer filed by defendant. Peremptory writ issued.

Demurrer and motion to quash the petition overruled and a peremptory writ of mandate issued.

E. M Wolfe, for Plaintiff.

Sufficiency of statement contained in the summons may be corrected by amendment; defect in name of defendant not fatal. Other defects corrected. (McKnight v. Grant, 13 Idaho 629, 92 P. 989, 121 Am. St. 287.)

The fact that the clerk makes a mistake in drawing summons and in some respect fails to comply with the statutory requirements will not alone and of itself render the process void. (Ridenbaugh v. Sandlin, 14 Idaho 472, 94 P. 827, 125 Am. St. 175.)

The court has control over its process and may order a defective summons so amended as to conform to the requirements of the statute. (Empire Mill Co. v. District Court, 27 Idaho 383, 149 P. 499.)

"This court is directed in every stage of an action to disregard any error or defect in the pleadings or proceedings which do not affect the substantial rights of the parties." (Harpold v. Doyle, 16 Idaho 671, 102 P. 158; Empire Mill Co. v. District Court, supra. )

Chas. A. North, for Defendant.

The defect in the summons in the case at bar is one of substance and not of form; consequently the summons is void and not amendable and the service of the summons gave the court no jurisdiction over defendant. (C. S., sec. 6672, as amended by 1927 Sess. Laws, p. 119; Snake River Valley Irr. Dist. v. Stevens, 18 Idaho 541, 547, 110 P. 1033; Ridenbaugh v. Sandlin, 14 Idaho 472, 94 P. 827, 125 Am. St. 175; 50 Cor. Jur. 454; Duluth Brewing & Malting Co. v. Allen, 51 Mont. 89, 149 P. 494.)

BUDGE, J. Lee, C. J., and Givens and Varian, JJ., concur.

OPINION

BUDGE, J.

This proceeding in mandamus is brought by plaintiff seeking to compel defendant district judge to proceed with the trial of an action on its merits. From the petition it appears that plaintiff filed a complaint against Fred J. Walters and Chrissic M. Walters, his wife, as defendants, in the district court of Twin Falls county, to foreclose two real estate mortgages. Summons was issued by the clerk of that court. The sheriff of Twin Falls county made return thereon that he personally served the same on defendant Fred J. Walters at Twin Falls, by delivering to him personally a copy of said summons together with a copy of the complaint in said action attached thereto. The copy of the summons so served upon said defendant was in printed form with the blanks filled in, and is captioned:

"In the District Court of the Eleventh Judicial District of the State of Idaho, in and for Twin Falls County, Idaho," the printed word "Cassia" being stricken out by typewriting and the words "Twin Falls" being inserted in typewriting immediately above. The copy of the complaint served with and attached to the copy of the summons is captioned: "In the District Court of the Eleventh Judicial District of the State of Idaho, in and for the county of Twin Falls." In the body of the copy of the summons served appears the following printed matter:

" . . . . You are hereby notified, That a complaint has been filed against you in the District Court of the Eleventh Judicial District of the State of Idaho, in and for the County of Cassia, by the above named plaintiff and you are hereby directed to appear and plead to the said complaint within twenty days of the service of this summons. . . . "

The copy of the summons also contains the name of the clerk issuing the original. Within the time prescribed by statute and specified in the summons within which he might appear and plead, defendant appeared specially in said action in the court in which the same was filed, and moved to quash the service of summons on the ground that the service was void and the court acquired no jurisdiction thereby. At the hearing of the motion to quash, counsel for plaintiff made a motion for leave to amend the summons served upon defendant by erasing therefrom the printed word "Cassia" in the body of the summons, and inserting in lieu thereof the words "Twin Falls." The motion to quash was granted and the motion to amend the summons denied. Thereafter counsel for plaintiff requested the court to enter default of the defendant Fred J. Walters for failure to appear and answer and also to proceed with the trial of the cause on its merits. This the court refused to do. Thereupon petitioner filed his petition herein upon which an alternative writ of mandate was issued. Defendant district judge has filed a demurrer and motion to quash, presenting the issue that by reason of the failure to strike out the word "Cassia" in the body of the summons and to substitute in lieu thereof the words "Twin Falls" the summons was void and conferred no jurisdiction on the trial court to proceed further with the consideration of the action.

The primary purpose of summons and its service is to give notice to defendant of the pendency of an action against him so that he may have an opportunity to be heard on the claim made against him. (50 C. J. 447, sec. 17.) We are therefore called upon to determine under the facts presented whether the summons in question, even if defective in the respects asserted, was sufficient in notify defendant Walters of the pendency of the action and in what court it was pending and to afford him an opportunity to be heard.

The caption on the copy of the summons and the copy of the complaint served upon defendant correctly informed him of the pendency of the action and the court in which such action was pending. The striking out of the printed word "Cassia" and the insertion of the typewritten words "Twin Falls" were indicative of an intention to modify the printed form. If the word "Cassia" had not been stricken out the typewritten words "Twin Falls" would control, under the familiar rule of construction that written or typewritten matter controls over printed where the same are conflicting. (13 C. J. 536, sec. 498.) The defendant was served in Twin Falls county, the county of his residence, by the sheriff of that county. His attorney filed and made the motion to quash the service of summons in the court in which the action was pending and within the time limited by the notice in the summons within which he was required to plead. The name of the clerk of the district court of Twin Falls county, who alone had authority to issue summons out of that court, appeared upon the copy of the summons, and we may infer that defendant's attorney knew that that was the name of the clerk of the district court of Twin Falls county, that being the county in which he was practicing, which knowledge was imputable to defendant. (6 C. J. 639, sec. 144.) From the copy of the complaint served it appears that the object of the action was to foreclose two mortgages upon real property situate in Owyhee and Twin Falls counties, respectively. Since C. S., sec. 6661, requires that, where mortgaged property is situate in two or more counties, the foreclosure may be brought in either, the defendant knew that foreclosure could not be had in Cassia county, but must be commenced in either Owyhee or Twin Falls county.

With all this information before him, it cannot be logically said that the defendant could have been or...