Whitmore v. Behm

• Decision Date: 26 October 1911
• Parties: WHITMORE v. BEHM
• Court: North Dakota Supreme Court

133 N.W. 300

22 N.D. 280

WHITMORE v. BEHM

Supreme Court of North Dakota

October 26, 1911

Rehearing Denied November 25, 1911.

Appeal from District Court, Ward county; E. B. Goss, J.

Action by Charles Whitmore against Nick M. Behm. From a judgment for plaintiff, defendant appeals.

Affirmed.

Dorr H Carroll, for appellant.

Arthur LeSueur (Noble, Blood, & Adamson, of counsel), for respondent.

FISK J. GOSS, J., took no part in the decision; Honorable W. C CRAWFORD, Judge of the Tenth Judicial District, sitting in his place by request.

OPINION

FISK, J.

This litigation originated in justice's court, where plaintiff recovered judgment by default. Concededly the proceedings before the justice were regular in all respects, with the exception that the copy of the summons served on the defendant designated the return day as "the 15th day of January, A. D. 1906," instead of the 15th day of January, 1907, which was the return day designated in the original summons. The record discloses that the summons was served by delivering a copy thereof, as aforesaid, on January 5, 1907. On the return day designated in the original summons, the defendant made a special appearance, and moved that the cause be dismissed for lack of jurisdiction, basing his motion solely upon the ground that the copy of summons served upon him designated an impossible date for his appearance, and consequently it was the same as no date. Such motion was overruled and defendant suffered a default judgment to be taken against him. Subsequently he took an appeal to the district court from the judgment on questions of law alone, alleging said ruling of the justice as error. At the time of taking such appeal, he also filed an answer to the complaint. The district court subsequently entered a judgment, affirming the judgment of the justice, and this appeal brings up for review the correctness of the judgment of the district court.

We find no error in the record. There is no merit in appellant's contention that the justice did not acquire jurisdiction. Defendant could not possibly have been misled by the designation of the wrong year in the copy of the summons. It was palpably a mere clerical error. The month and day of the month were correctly designated, and plaintiff was bound to know that the summons could not legally be made returnable during any month, other than the month of January, 1907, for the Justice's Code (§ 8362) prescribes that "the time specified in the summons for the appearance of the defendant shall be not less than three or more than fifteen days from the date on which it is issued." The test as to whether such an error in the copy of the summons will prove fatal to the jurisdiction of the justice seems to depend upon the fact as to whether it operated to mislead the defendant to his prejudice. A case in all respects identical on principle with the case at bar arose in New York, and in disposing of the point here raised the court said: "What effect, then, does the service of a defective copy have on the proceeding, particularly where the defect on its face is but an apparent clerical error, as in this case? The rule seems to be that where the return day is made reasonably certain, so that the defendant cannot be misled thereby, a clerical error between the original and the copy served will be...