34 P. 811 | Idaho | 1893
Plaintiff brought action in probate court, to recover $300 damages alleged to have been sustained by him through the wrongful acts of defendant, in breaking into inclosure of plaintiff, destroying a certain pigpen, and' driving-away certain hogs from the premises and possession of plaintiff.. The action ivas commenced by filing complaint, and issuing summons thereon. Summons was dated May 10th, returned May 15th and served May 11th. The summons contained the-following words: “The said action is brought to recover a judgment for the sum of $300 damages done to the plaintiff, together with the costs of this suit, against you, as more fully-appears in plaintiff’s complaint, now on file in my office at ML Idaho, in the county of Idaho and state of Idaho,” which is the-only statement of the case which appears in the summons. Ne copy of the complaint was served with the summons. On the-return-day of the summons, defendant appeared specially, and moved to quash the summons upon the grounds (1) that the defendant had never been served with a copy of the complaint in the action; (3)that the summons does not give the defendant sufficient notice, as required by law. This motion was over
The sole contention of appellant in this court is that, by answering and demurring in the probate court, defendant waived all objections to the original process, and cannot raise such objection either in the district court or here. It seems to be conceded, as is undoubtedly the fact, that the summons in this case was fatally defective, in not containing “a sufficient statement of the cause of action, in general terms, to apprise the defendant of the nature of the claim against him,” as provided in subdivision 2, section 4655 of the Eevised Statutes of Idaho. Had the district court overruled the defendant’s motion to quash the summons, and had the plaintiff then elected to demur or answer, or both, the rule in the California cases cited by appellant might properly be invoked; but the Eevised Statutes of Idaho (section 4841) provide that, on appeal to the district court, from a probate or justice’s court, either party may have the benefit of all legal objections made in the probate or jus