Brandenburger v. Easley

78 Mo. 659 | Mo. | 1883

Henry, J.

This suit originated in a justice’s court in Linn county. The writ of summons issued by the justice, is as follows: “ State of Missouri, to the constable of Locust Creek township, in the county of Linn, State of Missouri, greeting: We command you to summon George W. Easley to appear before the undersigned, one of the justices of the peace of Locust Creek township, in Linn county aforesaid, on the 23rd day of June, 1880, at ten o’clock in the forenoon, at his office in said township, to answer the complaint of S. Brandenburger and A. Lowenstein, of the firm of S. Brandenburger & Co. Given under my hand, this 10th day of June, 1879. W. P. Menefee, justice of the peace.” On which summons a return was made as follows: “ I hereby certify that I have executed the within writ by delivering a true copy of the within writ to the within named George W. Easley, the 11th day of June, 1880, in Locust Creek township, Linn county, Missouri. Marion Poles, constable.” Judgment by default was rendered against defendant by the justice on June 23rd, 1880. And on July 2nd, 1880, defendant, by attorney, appeared for the purposes of the motion only and filed his motion to set aside the judgment. This was overruled by the justice and defendant appealed.

In the circuit court the defendant filed his motion to dismiss the suit, which motion is as follows : “ Now at this day comes the said defendant and appearing for that purpose only, moves the court to dismiss this suit for the reasons following, to-wit: Because the summons served in this case does not state the nature of the suit or the sum demanded, as required by law.” Which motion was overruled by the court and defendant excepted. At the same term of said court and on December 10th, 1880, judgment was rendered against defendant for the sum of $81.05, by default. And on the same day defendant filed his motion to set aside the judgment by default and grant a new trial, for the reasons following: (1) Because the court improperly overruled the motion to dismiss the case made by defendant. (2) Because the judgment was rendered against the defendant without his having such notice thereof as was required by law. (3) Because said summons was not, served upon the defendant by any officer authorized by law.. (4) Because no summons was served on defendant. Th& court overruled the motion for new trial and defendant excepted.

i. justices' coubts: summons. Section 2858, R. S. 1879, provides that the summons shall command the constable to summon the defendant to aPPear before the justice at the time and place named therein, “ not less than ten nor more than seventy-four days from the date thereof, to answer the complaint of the plaintiff, stating also the nature of the suit and the sum demanded.” It does not appear from the summons whether the suit was on a note or account, or on what cause of action. If on an instrument of writing, purporting to have been executed by the defendant, and tbe debt or damages claimed may be ascertained from tbe instrument, tbe law dispenses witb a statement of tbe canse of action, preliminary to tbe issuance of tbe writ, but requires that tbe writing shall be filed witb tbe justice. § 2852. Tbe statement filed witb tbe justice is not before us, nor docs it appear, except in plaintiff’s statement of tbe case in this court that tlie suit was on a promissory noto. Section 2858 requires that, in tbe summons, tbe nature of tbe suit shall be stated. Because tbe summons required tbe defendant to appear more than a year after its date, and contained no statement of tbe nature of tbe suit, it was a nullity.

There is no suggestion that tbe summons was, in fact issued on tbe 10th day of June, 1880, and that it was a 2. this court. clerical error to give it tbe date it bears. "While we might conjecture that this was so, yet we cannot, on mere conjecture, regard tbe 10th day of June, 1880, as the true date at which tbe summons was issued.

Tbe motion to dismiss should have been sustained, and the judgment is reversed and tbe suit dismissed.

All concur.