92 P. 989 | Idaho | 1907
This is an appeal from a judgment entered on default, after service by publication. The plain
The first question presented by appellant is that section 4145 of the Revised Statutes is unconstitutional and void in so far as it authorizes a probate judge to order publication of a summons in a case that is pending in the district court. It is first claimed that under section 13 of article 5 of the constitution, which provides that “The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it as a co-ordinate department of the government,” the legislature has no authority to confer upon a probate judge the power to make orders for publication of summons in any case pending in another court. Appellant also contends that such power and authority must be exercised by the “court” as distinguished from a “judge.” And, again, he contends — that under section 21, of article 5, the jurisdiction of probate courts in civil matters is limited to cases wherein the debt or damage claimed does not exceed the sum of $500. It is argued that to authorize a probate judge to make an order for the publication
Considerable space is occupied in appellant’s brief in arguing that the direction of the summons as to the time in which defendant should answer is not in conformity with the requirements of subdivision 3, of section 4140, Revised Statutes. That provision of the statute requires that the .summons shall contain “A direction that the defendant appear and answer the complaint Within ten days, if the summons is served within the county in which the action is brought; within twenty days, if served out of the county, but in the district in which the action is brought, and within forty days if served elsewhere.” The summons in that respect required the defendant to appear and answer “within ten days after the service of the summons upon you, if served within this county and state; within twenty days after the service of this .summons upon you if served within the above-entitled judicial district outside of this county and state; otherwise within forty days, if served elsewhere; in either case, exclusive of the day of service. ’ ’ Appellant contends that this is a departure from the statutory requirements, and leaves the time for answering in doubt, and uncertainty, and amounts to no requirement for his appearance in ease he is served outside the state. It is true that the sentence is somewhat involved, and opens the way for some refinement of argument on account of the repetition of the words “this county and state. ’ ’ It would have undoubtedly been much better to have followed the statutory language, but, on the other hand, we are satisfied that the defendant was neither deceived nor misled by the sentence contained in this summons as to the time within which he should appear and answer. To one who is not naturally looking for defects in the summons, it would con
It is next objected that there is a misnomer in the alias summons as published. The plaintiff’s name as appears in the complaint and summons is “II. B. McKnight,” but in some way, when the summons was published, it was made to appear, “H. B. Knight.” The copy of the complaint and summons, as mailed to the defendant by the clerk, appears to have been correct, but the copy as it appeared in the newspaper, left off the first two letters of the name. A mistake like this is not so material, where it occurs in the name of the plaintiff, as it would be if in the name of the defendant. The defendant ordinarily knows whether he has had any business dealings with the plaintiff or not, and whether he is indebted to him or not. If he were sued under a wrong name, he might have some doubt, however, as to whether he was the real person being sued, and in that respect might be misled into a failure to appear at all. We think, under the circumstances of this case, that the mistake was not fatal. (Martin v. Lundstrom, 73 Minn. 121, 75 N. W. 1038.)
In publishing the alias summons, the printers seem to have omitted the word “filed,” as it appears in the following sentence of the summons: “You are hereby notified and required to appear in the above-entitled court in the above-entitled cause, to answer the complaint of the plaintiff filed herein.” The sentence as published simply required him “to answer the complaint of the plaintiff herein.” This was not a fatal omission or variance. A defendant has notice that under the statute of this state a summons cannot be issued until a complaint has been filed. The recital that he is required to appear and answer the complaint herein is in substance .as much of a notice that a complaint has been filed as if it said, “answer the complaint filed herein.” “The complaint herein” must necessarily be the complaint in the action in which the summons is issued and from which the statements in the summons are gathered as to the nature of the cause of action.
Numerous other minor questions, have been argued by appellant at great length in connection with the different objections we have just considered, but we do not deem it necessary to take them up in further detail. We find no valid reason why the trial court should have quashed the