Seurer v. Horst

Decision Date31 January 1884
PartiesAndrew Seurer v. Charles L. Horst
CourtMinnesota Supreme Court

Plaintiff brought this action in a justice's court, to recover the value of services alleged to have been performed for defendant. Because of the defect in the summons stated in the opinion, the defendant appeared specially and moved to dismiss, which motion the justice denied. Defendant then answered, and the cause proceeded to trial, judgment being rendered in favor of the plaintiff. From this judgment defendant appealed to the municipal court of St. Paul, and when the case was called, again appeared specially and moved to dismiss because of the defect in the summons, which motion was denied. The case was tried, and plaintiff again recovered judgment, from which defendant appeals.

For this reason a new trial must be granted.

William Porter, for appellant.

No appearance for respondent.

OPINION

Dickinson, J.

1. The statute requires that the summons issued by a justice of the peace "shall be entirely filled up, and have no blank either in date or otherwise, at the time of its delivery to an officer to be executed," and declares that a summons "issued contrary to the provisions of this section shall be void." Gen. St. 1878, c. 65, § 12. The summons in this case, requiring the defendant to appear before the justice "at ten o'clock in the * * * noon," did not comply with this requirement, and was void. The justice should have dismissed the action upon the defendant's motion. But after trial before the justice the defendant appealed, upon questions of fact, to the municipal court. He thereby waived the objection that he was not within the jurisdiction of the court. The effect of such an appeal was to invoke an adjudication by the municipal court upon the merits of the case as presented by the pleadings. The defendant might not thus bring the case into the municipal court for the very purpose of a retrial upon the merits, and then be heard to question the jurisdiction of that court with respect to himself. See Craighead v Martin, 25 Minn. 41; Anderson v. Hanson, 28 Minn. 400, 10 N.W. 429.

2. The court erred in receiving as evidence of the value of plaintiff's services the opinions of witnesses who had not, so far as appears, any special knowledge upon the subject; also in receiving, for the same purpose, proof of what wages another employe of the defendant received. For this reason a new...

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2 cases
  • Stacy Fruit Company, a Corp. v. McClellan
    • United States
    • United States State Supreme Court of North Dakota
    • May 24, 1913
    ...Deering & Co. v. Venne, 7 N.D. 583, 75 N.W. 926; Dikeman v. Struck, 76 Wis. 332, 45 N.W. 118; 2 Enc. Pl. & Pr. 614, note 2; Seurer v. Horst, 31 Minn. 479, 18 N.W. 283. justice's record and return cannot be attacked by affidavit. Mouser v. Palmer, 2 N.D. 466, 50 N.W. 967. The service of noti......
  • Morgridge v. Stoefer
    • United States
    • United States State Supreme Court of North Dakota
    • October 2, 1905
    ...(N.Y.) 17. Burke & Middaugh, for respondent. Justice summons must be issued with no blanks to be filled; otherwise it is void. Seurer v. Horst, 18 N.W. 283. cannot be supported where declaration is against a partnership by its firm name. Reade v. McLeod, 20 Ala. 576. Suit brought in firm na......

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