Hanna v. Russell

12 Minn. 80 | Minn. | 1866

By the Cou/rt

ÍWxl&os, Oh. J.

The defendant Russell made a motion in the Court below, to be relieved from a judgment entered against him in this action, on the ground that the- Court had no jurisdiction to render such judgment, “as appears upon the tace of the summons, and in which the following defects exist: (1) that the action was not commenced in any court haying a legal existence at the time the said pretended summons was issued; and (2) the said pretended summons has not the style required by section fourteen of article six of the Constitution of this State. ” .The summons was personally served on the defendants, and they not appearing, judgment was entered against them by default. If the summons was void, and its service conferred no jurisdiction on the Court, of course the subsequent proceedings are void, and the judgment is a nullity.

The first objection to the summons is based on the fact that the plaintiffs therein describe the Court as of the “ 3rd District Minnesota Territory.” This was error, Hennepin County then being in the fourth judicial district of the State; but the error did not make the summons void. The words objected to were unnecessary in the summons; without them the requirements of the ■ statute were complied with, and they may proqoerly be treated as surplusage. Their use could in no way mislead or prejudice the defendants. Our statute expressly provides that purely technical objections, like this, which'do not affect the substantial rights of the adverse party, shall be disregarded.

The second objection we do not think tenable. Admitting that a summons is process within the meaning of the Constitution, the want of the style prescribed would not make it absolutely void. It would be error, of which a defendant might' take advantage within the time, and in the manner designated by law. Parsons vs. Sweet, 32 N. H. Rep. 88, and cases there cited; Ilsley vs. Harris, 10 Wis. 100, and cases cited. But we think a summons is not process within the meaning of section fourteen article six of our State Constitution. It is merely a notice given by the plaintiff’s attorney to the defendant that proceedings have been instituted, and judgment will be taken against Mm if be fails to defend. This notice is not issued out of or under tbe seal of tbe Court, or by tbe authority of tbe Court, or any judicial officer. Tbe fact- that tbe Court acquires jurisdiction by its service, does not prove it process, for it is competentffor tbe legislature to provide that tbe Court shall acquire jurisdiction by tbe service of the complaint without a summons, or in any other manner by which tbe defendant may be notified that proceedings have been instituted against Mm. “Process,-” in a large acceptation, is nearly synonymous with proceedings, and means tbe entire proceedings in an action from tbe beginning to tbe end. In a stricter-sense it is applied to tbe several judicial writs issued in an action. 7 Comyn's Dig. 120; 3 Black. Com. 279 et seq.; Bouvier’s Law Dic. In this last sense it is mamfestly used in tbe Constitution, and when used in this sense, we believe it only applies to judicial instruments issued by a Court, or other competent jurisdiction and returnable to tbe same. A summons in our practice therefore we tlpnk is not, in a strict or proper sense, or in tbe sense in which tbe word is used in tbe Constitution, process. We are referred to tbe decision of tbe Court in Hinckley vs. St. Ant. Wat. P. Co., 9 Minn. 55, and Dorman vs. Bayley, 10 Minn. 383. In tbe former case the court held that a garnishee summons is process, but this was not a point on which tbe case turned, and we presume it was therefore not much considered. Tbe decision of tbe court in tbe latter case is not in conflict with tbe views above expressed. Tbe order appealed from is affirmed.

Berry, J.

As to tbe second objection discussed in tbe foregoing opinion, I assent to tbe conclusion arrived at on tbe grdund that a summons is not “ process” within tbe meaning of tbe constitution. I concur in tbe disposition made of tbe first objection.