Latta v. GriffithLatta v. Griffith
- Reporters:
- Before:
- Worden
Griffith held a note against Latta for four *330hundrеd and eighteen dollars and fifty cents, and placеd it in the hands of an attorney for collection, who commenced suit thereon; but in the complaint hе described the note, by mistake, as being for two hundred аnd eighteen dollars and fifty cents, instead of the true amount.
At the May term, 1873, of the court below, judgment was rendеred in favor of Griffith, against Latta, for the amount due on the note, supposing it to have been given for two hundred and eighteen dollars and fifty cents, the mistake in thе complaint leading to a mistake in the amount fоr which judgment was rendered. The note or a coрy thereof, we may assume, was filed in that action.
Aftеrward, Griffith filed his complaint, or motion, in the court below, to correct the mistake in the amount for which the judgment was rendered.
A summons was issued in the case, and sеrved on the defendant, Latta, by the sheriff of Marion сounty, on December 11th, 1873, requiring him to appear and answer the complaint on the second day оf the next term of the court, to be held on the third Monday of December, 1873.
Afterward, on January 8th, 1874, the defendant not appearing, he was defaulted, and the court proceeded to hear the cause, and made the correction.
It is assigned for error:
1st. That the court below had no jurisdiction over the subject-matter of thе action;
2d. The court below had no jurisdiction ovеr the person of the defendant below; and,
3d. The сomplaint does not state facts sufficient to сonstitute a cause of action.
We are of opinion, that the paper styled a comрlaint should be regarded as a mere written motion, nоt to be tested by demurrer, nor subject to an assignment of error that it does not state facts sufficient. Jenkins v. Long, 23 Ind. 460; Bales v. Brown, ante, p. 282.
*331This disposes of the third assignment of error.
As to thе first, that the court had no jurisdiction over the subject-mаtter, we are of opinion that the court had such jurisdiction. That the court had jurisdiction to correсt such mistakes, see the cases above cited; also, Sherman v. Nixon, 37 Ind. 153.
We are of opinion, also, that the court had jurisdiction over the defendant below.
The correction could only he properly made in the court where the mistake was committed, and the defendant was bound to answer the motion to cоrrect in that court, or let the matter go by default. The summons served on the defendant may be regarded аs a notice. Jenkins v. Long, supra. It was served on December 11th, and the court commenced,, we believe, on the 15th. The defendant was required to appear on thе second day of the term. This made four days, excluding bоth the day of the service and the day the defendant was required to appear.
This, it seems to us, gave the defendant ample time to make all needful preparations, and to go from Marion to Rush county.
There is no error in the record.
The judgment below is affirmed, with costs.