127 P. 780 | Or. | 1912
Lead Opinion
delivered the opinion of the court.
It was admitted by the defendant in person at the hearing of this case in this court, that the return of the sheriff indorsed upon the summons was strictly true as therein stated. There are two things of which he complains on his appeal. One is that the blank left for the name of the county in the title of the cause as the same appears in the summons was not filled, and the other is that the summons notifies the defendant that the plaintiff will “take judgment against you as prayed for in its complaint,” instead of stating that the plaintiff would take judgment for a specific sum of money. The deduction which the defendant makes from these premises is that the circuit court had no jurisdiction over his person and none to render the judgment.
Conceding, without deciding, that, prior to the amendment of Article VII of the constitution of this State, adopted by the initiative process at the November election, 1910, the conclusion urged by the defendant would be the proper one to be deduced from the precedents heretofore established in this court, yet we think the constitution referred to has materially altered the situation. In part, Section 3 of the amended Article VII reads thus:
“Until otherwise provided by law, upon appeal of any case to the Supreme Court either party may have attached to the bill of exceptions, the whole testimony, the instructions of the court to the jury and any other matter material to the decision on the appeal. If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial or if in any respect the judgment appealed from should be changed and the Supreme Court shall be of the opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment
The will of the people as thus expressed in the constitution has sounded the death knell of many technicalities, which are best honored in their breach rather than in their observance. It removes from this court the fetters of hair-splitting niceties, and enables it to proceed according to common-sense rules of natural justice, having due regard to the spirit of the law rather than its letter. Confessedly the defendant was personally served with the complaint, a document which informed him at large with what the plaintiff charged him, in what court he was charged, and of the relief demanded by the plaintiff. Technically considered, the circuit court may have erred in rendering judgment on such a summons; but by the constitution alluded to we have authority to affirm the judgment “notwithstanding any error committed during the trial.” In may be, too, that for the purpose of enforcing substantial justice it will in some cases hereafter be deemed proper to adhere to the former precedents; but the case at bar presents no features debarring the use of the plenary power confided to us by the people to disregard any error.
The judgment appealed from is affirmed. Affirmed.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court.
■ In five pages of typewritten ululation, the defendant asks for a rehearing of his appeal, criticising our former opinion, reported 127 Pac. 780. The ground of his critique, as he states it, is that “no regard or thought was
The abstracts disclose that on April 24, 1912, the plaintiff filed in the circuit court of Union County a complaint entitled “In the Circuit Court of the State of Oregon for Union County. First National Bank of Joseph, a corporation, Plaintiff, v. John P. Rusk, Defendant.” This complaint stated a cause of action as follows:
“That the plaintiff is now and has been during all the times herein mentioned a corporation duly organized and existing under and by virtue of the national banking laws of the United States; that the defendant is and at all the times herein mentioned was an attorney of the Supreme Court of the State of Oregon; that on or about October 24, 1911, in Umatilla County, Oregon, the said defendant received from one D. H. Mansfield, as the attorney of said plaintiff, the sum of $87 to the use of said plaintiff, which he, the said defendant, agreed to pay to plaintiff on demand; that thereafter and before this action was commenced the said plaintiff demanded payment thereof from the said defendant; that the said defendant has not paid the said sum or any part thereof, except the sum of $52.55; that the sum of $34.45, with interest thereon at the rate of 6 per cent per annum from October 24, 1911, is now due, owing, and unpaid; wherefore the said plaintiff prays judgment against the said defendant for the sum of $34.45, with interest thereon at the rate of 6 per cent per annum from October 24, 1911, until paid, and for costs and disbursements of this action.”
On the same day a summons was issued and delivered to the sheriff, which reads thus:
“In the Circuit Court of the State of Oregon for the County of -. First National Bank of Joseph,
“(Signed) A. M. Runnels, Attorney for Plaintiff.”
On the date of its issuance this summons was returned into the circuit court and filed therein with the following return indorsed thereon:
“State of Oregon, County of Union—ss. I, S. P. Childers, sheriff of said State and county, do hereby certify that I served the within summons in the said State and county on the 24th day of April, 1912, on the within-named defendant, John P. Rusk, by personally delivering a copy thereof prepared and certified by me as sheriff, together with copy of the complaint compared and certified to by A. M. Runnells, attorney for plaintiff, to John P. Rusk, personally and in person.
“(Signed) S. P. Childers, Sheriff of Union County, State of Oregon, by C. P. Newman, Deputy.”
It does not appear that the defendant gave any attention to the papers thus served upon him, but appealed from the default judgment entered against him on May 31, 1912. It is not suggested that the defendant was surprised, or was a victim of inadvertence or excusable neglect, and no application seems to have been made to set aside the default or grant leave to answer; hence the validity of the judgment appealed from must be determined from the papers already quoted. The defendant bases his contention here on the grounds that the blank left for the name of the county in the title of the cause as it appears in the summons was not filled, and that he
“The summons shall contain the name of the court in which the complaint is filed, the names of the parties to the action and the title thereof. It shall be subscribed by the plaintiff or his attorney and directed to the defendant and shall require him to appear and answer the complaint as in this section provided, or judgment for want thereof will be taken against him. If the defendant be served within the county in which the action is commenced he shall appear and answer the complaint within ten days from the date of the service; but if he be served within any other county in the State he shall appear and answer the complaint within twenty days from the date of the service.” Section 52, L. O. L.
“There shall also be inserted in the summons a notice in substance as follows: 1. In any action for the recovery of money or damages only the plaintiff will take judgment for the sum specified therein if the defendant fails to answer the complaint. 2. In other actions that if the defendant fail to answer the complaint the plaintiff will apply to the court for the relief demanded therein.” Section 53, L. 0. L.
Ever since the adoption of the Code of Civil Procedure in this State, it has been the rule, as declared in Section 556, L. 0. L., that “upon an appeal from a judgment the same shall only be reviewed as to questions of law appearing from the transcript and shall only be reversed or modified for errors substantially affecting the rights of the appellant.” A summons is not a process or writ issuing out of any court, but is a notice promulgated by the plaintiff and addressed to the defendant, requiring him to appear and answer, not the summons, but the complaint filed against him. Apropos to the controversy here, Section 545, L. 0. L., provides a rule of construction that “a notice or other paper is valid and effectual
In Adams v. Kelly, 44 Or. 66 (74 Pac. 399), the question was whether a court obtained jurisdiction over the subject-matter of a cause when the court itself was wrongly named. Mr. Justice Wolverton reviews many precedents on this subject, and concludes that “these cases all tend irresistibly to the one conclusion, namely, that the stating of the name of the court in the complaint is a formal and not a jurisditional matter.” The analogy holds good when, as in this case, the mere
Much reliance is placed by the defendant upon the case of Smith v. Ellendale Mill Co., 4 Or. 70. In that case the complaint was entitled and filed in the circuit court of Marion County, while the summons served upon the appellant was entitled in the circuit court of the State of Oregon for the county of Multnomah, and required the appellant to appear in the court of the latter county, instead of Marion County, where the judgment was rendered. The summons was served in Marion County. That case is distinguishable from the one at bar from the fact that there it affirmatively appeared that the summons was a notice to the defendant to appear in an entirely different court in another county, and not in the court rendering the judgment. Here no contradiction between She complaint and the summons exists as in that case. The name of the county as part of the court’s designation in one of the papers is simply left blank, and this is rationally explained by the terms of its companion paper, to which reference is made in the summons itself.
White v. Johnston, 27 Or. 294 (40 Pac. 511: 50 Am. St. Rep. 726), cited by defendant, was a case where the party sought to be charged by service of the summons was not named in that paper. Eggleston v. Wattawa, 117 Iowa, 676 (91 N. W. 1044), was based upon a summons which required the defendant to appear in a court unknown to the law of that state. In Dix v. Palmer, 5 How. Prac. (N. Y.) 233, no court whatever was named. In Tallman v. Hinman, 10 How. Prac. 89, the court held that a summons not naming any court was only voidable; and hence a judgment rendered on such a summons was not appealable. The conditions noted, as appearing in
In addition to what has already been said to the effect that the fault of a summons in not specifying a particular sum of money for which judgment was desired was obviated by the reference to the complaint, where the prayer for judgment disclosed the exact amount, we observe that Section 185, L. O. L., provides that in an action arising upon a contract for the recovery of money or damages only the clerk may, upon application, enter a judgment by default for the amount demanded in the complaint. In other actions, including all actions sounding in damages for torts, and opposed to actions on contracts or for debt, the judgment by default must be entered by the court itself, instead of by its officer, the clerk. . Taken in connection with Section 53, L. 0. L., prescribing the notice to be inserted in the summons respecting the amount of the recovery desired, the reason for this distinction is that if the amount is specified in an action for the recovery of a certain sum of money only, and no answer is made, the entry of judgment becomes a mere clerical act, and may as well be performed by the clerk as by the court; while in other actions the exact amount of the recovery must depend upon a judicial investigation, which can be conducted only by an officer having judicial authority. The reason of the rule fails in that connection when we find, as in this case, that the judgment was rendered by the court, which, if nothing else were shown, would certainly be right under a summons which declared that the plaintiff would apply to the court for the relief demanded in the complaint.
This distinction is pointed out and elaborated in the case of Schuttler v. King, 12 Mont. 149 (30 Pac. 25), where the court explains in substance that, while a clerk can enter a default judgment, where the summons
We adhere to the former opinion.
Affirmed : Rehearing Denied.
