Morrison County Lumber Company v. Duclos
| Decision Date | 19 November 1915 |
| Docket Number | 19,434 - (98) |
| Citation | 154 N.W. 952,131 Minn. 173 |
| Parties | MORRISON COUNTY LUMBER COMPANY v. ODILON DUCLOS |
| Court | Minnesota Supreme Court |
Action in the district court for Morrison county to recover a balance of $5,740.89 and to foreclose a mechanic's lien for the same. Plaintiff moved for an order amending the summons and complaint by changing the name of defendant P. O Duclos to Odilon Duclos. The motion was heard before Parsons J., who granted it. From that part of the order which amended the summons and complaint by such change of name and from that part of the order which denied the motion of Odilon Duclos to set aside the service of summons, he appealed. Affirmed.
Amendment of summons -- initials of name.
Confused as to the true first names of a father and son, the attorney who prepared the complaint and issued the summons inserted the initials of the son instead of the first name or initial of the father in the papers. The attorney intended to make the father a party defendant and not the son. He served the summons upon the father personally. It is held that, before the trial, upon proper notice, the court had power to amend the summons and files, by striking therefrom the initials of the son wherever the same occurred and inserting in lieu thereof the initial or first name of the father.
E. P. Adams, for appellant.
A. H. Vernon, for respondent.
In an action to foreclose a mechanic's lien a defendant was named P. O. Duclos. In the complaint filed the same name was used, and it was alleged that plaintiff made the contract for the improvement with the defendant P. O. Duclos, and that he was the owner of the premises upon which the lien was sought. The attorney who prepared the summons, lis pendens and complaint, personally served the summons by handing and delivering a copy thereof to Odilon Duclos, also known as O. Duclos. Odilon Duclos had a son whose name was P. O. Duclos. No attempt was made to serve upon the son. The attorney who made the service knew both father and son. After the time expired within which an action could be commenced to foreclose the lien, plaintiff moved to amend the summons and all the papers in the action, by striking out the initials in the name of defendant Duclos wherever it occurs, and inserting in lieu thereof the Christian name Odilon, on the ground that through inadvertence and mistake of the attorney preparing the papers in the action the defendant had been misnamed. At the same time Odilon Duclos appeared specially and moved to set aside the service of the summons. The court granted plaintiff's motion and denied that of Odilon Duclos who appeals.
The contention is that, since there was a person of the identical name to whom the summons was directed, the amendment of the name was substituting another defendant for the one named. And further, it is said, the court has no power to amend the summons so as to make one a defendant, when the summons is not directed to him as required by statute, but is directed to another person in such other person's correct name. We cannot sustain appellant. While a summons is not...
To continue reading
Request your trial