Prezeau v. Spooner, 35 P. 514

35 P. 514 | Nev. | 1894

The facts are embodied in the opinion. Appeal from a judgment by default.

The only point involved is the sufficiency of the summons, which was duly served upon the defendant in the county where the action was pending, together with a copy of the complaint. It was stated in the summons that the action was brought to obtain a judgment against the defendant for the sum of $5,000, balance due upon a promissory note, describing it, and $1,000 upon an unpaid check drawn by defendant; and this statement was followed by the following notification: "And you are hereby notified that if you fail to answer the complaint the said plaintiff will take judgment against you according to the prayer of the complaint." The prayer of the complaint was full and explicit. The objection is that the notice does not comply with section 26 of the practice act, in that it does not specify the sum for which the plaintiff will take judgment. This point was fully considered, and ruled adversely to the appellant, in the case of Higley v. Pollock,21 Nev. 198, and we are fully satisfied with the law as there laid down. No substantial right of the appellant can possibly be affected by such an error as occurred here, and, such being the case, both law and common sense require us to disregard. (Gen. Stats., sec. 3093.)

The judgment is affirmed.