Rich v. Collins

• Decision Date: 13 February 1899
• Citation: 56 P. 207,12 Colo.App. 511
• Parties: RICH v. COLLINS et al.
• Court: Colorado Court of Appeals

56 P. 207

12 Colo.App. 511

RICH v. COLLINS et al.

Court of Appeals of Colorado

February 13, 1899

Appeal from district court, Arapahoe county.

Action by Samuel Rich against J.V. Collins and another. From an order setting aside service of the summons, plaintiff appeals. Reversed.

Talbot Denison & Wadley, for appellant.

A.B Seaman and Harry S. Silverstein, for appellees.

WILSON J.

The summons issued and served in this case was entitled in favor of "Sam" Rich, plaintiff and recited, inter alia: "The nature of this action is as follows, viz.: To recover the sum of $375, due to plaintiff from defendants under contract of employment entered into between plaintiff and defendants, whereby defendants agreed to employ plaintiff at an agreed salary of $125.00 per month for the period of six months, and at the conclusion of three months discharged plaintiff without cause, and in violation of said contract; and for costs." Within 10 days after service of summons, the complaint was filed, which was entitled in favor of "Samuel" Rich, plaintiff. It alleged, in substance, that on June 1, 1895, plaintiff entered into the service of defendants under a contract of employment for six months, at the rate of $125 per month, payable monthly. It then continued as follows: "(3) That the plaintiff continued in said employ until the 1st day of September, 1895, and was ready and willing to remain in the same for the remainder of said term, but the said defendants, J.V. Collins & Co., refused to retain the plaintiff in their said employment, and discharged the plaintiff therefrom without any reasonable cause whatever, and have thence hitherto refused to employ the plaintiff for the remainder of said term. (4) That the said plaintiff has thereby lost the wages he otherwise would have obtained from other employment; that the said defendants have wholly refused to pay him the said wages; that the said plaintiff has been unable to obtain other employment; all of which has been to the damage of said plaintiff in the sum of five hundred dollars ($500.00), for which he brings suit." The plaintiff demanded judgment for $500 and costs. The defendants appeared specially, and moved that the summons be set aside, quashed, and held void, because of an alleged fatal variance between it and the complaint, in that it did not set forth correctly the name of the plaintiff, and did not state truthfully the sum of money or other relief demanded in the action. The motion was sustained, and from this plaintiff appeals.

Previous to 1889, a summons was required to contain, among other things, a brief statement of the nature of the action. Since that time, however, this is not necessary, the only requirement of the Code as to the action or the judgment desired being that the summons shall "briefly state the sum of money or relief demanded in the action." Civ.Code, § 34. This same section further provides that the summons shall not be construed void or erroneous on account of an insufficient statement of the relief demanded, unless the same is manifestly misleading. The Code itself also expressly provides that its provisions and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining justice, and that at every stage of an action the court shall disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties. Id., §§ 78, 443. The supreme court has repeatedly recognized this policy of the Code as declared in these sections, and has also declared, in accordance with this policy, that mere dilatory motions, based upon special appearances, are not favored under the present practice. Burkhardt v. Haycox, 19 Colo. 341, 35 P. 730; Andrews v. Carlile, 20 Colo. 370, 38 P. 465. It is manifest, without argument, that a defect in the summons which will be sufficient to constitute it void or erroneous must be of such a character as to mislead the defendant to his prejudice, and to prejudicially affect, or tend to so affect, some substantial...