280 N.W. 7 | Minn. | 1938
"STATE OF MINNESOTA, DISTRICT COURT "County of Rice. Fifth Judicial District.
__________
"Charles E. Griffin, Plaintiff,
vs.
"The Faribault Fair and Agricultural Association, also known as the Rice County Exposition and 4-H Club Fair, Defendants. *98
"You, and each of you, are hereby summoned and required to answer the complaint in the action above entitled which complaint is hereto attached and herewith served upon you," etc.
The complaint attached was entitled:
"STATE OF MINNESOTA, DISTRICT COURT "County of Rice. Fifth Judicial District.
__________
"Charles E. Griffin, Plaintiff,
vs.
"Dee Lang and The Faribault Fair and Agricultural Association also known as the Rice County Exposition and 4-H Club Fair, Defendants."
In the complaint it was alleged "That Dee Lang, the above named defendant, owns and operates a carnival," and that on August 9, 1937, he operated the same jointly with the other defendant at which plaintiff was injured through the negligence of defendants, for which injury plaintiff demands judgment against each of defendants in the sum of $23,150. The sheriff's return is that at the city of Faribault, Rice county, he "served the annexed summons and complaint upon Dee Lang said defendant personally by handing to and leaving with said defendant a true and correct copy thereof." The defendant Dee Lang appeared specially "for the sole purpose of questioning the jurisdiction of the court" over him and moved for an order vacating and setting aside the attempted service as void. At the same time plaintiff moved the court to amend the summons by adding the name of Dee Lang as a party defendant and to amend the title of the action in the summons so that it will conform to the title in the complaint attached and served with the summons on the defendant Dee Lang. The court denied Dee Lang's motion and granted plaintiff's. Dee Lang appeals. *99
In this state a summons is not a process within the meaning of art. 6, § 14, of the constitution, but a notice to a defendant that an action has been instituted against him by plaintiff to obtain a judgment if he fails to defend. Hanna v. Russell,
In Sleeper v. Killion,
"An original notice which is not addressed to a party to the suit, in which he is not named as party, and there is nothing in the notice itself to indicate that any relief is asked against him, will not confer jurisdiction to enter judgment by default, although the paper purporting to be notice of a suit was actually served upon him."
It is to be noted that under the Iowa practice the petition or complaint is not served with the notice or summons, and there was no proposition, as here, of the power or authority of the court to amend the notice. Casey v. Newport Rolling Mill Co.
The order is affirmed.
MR. CHIEF JUSTICE GALLAGHER took no part in the consideration or decision of this case. *101