Ritter v. Offutt

40 Md. 207 | Md. | 1874

Grason, J.,

delivered the opinion of the Court.

On the 21st day of February, 1873, the appellant insti-tuted this suit against the appellee in the Circuit Court for Baltimore County, the summons being made returnable to the March Term, when it was returned by the sheriff endorsed “summoned.” On the 3rd of March, 1873, the appellee appeared by J. T. B. Dorsey, Esq., rule nar. was laid and the case continued. On the 31st July, of the same year, the nar. was filed, and on the 5th day of September, the appellee filed a motion to quash the writ. On the 27th of September, the appellant moved to amend the summons by inserting the word “trespass” after the word action, so as to make the summons show that the suit Avas an action of trespass. The Circuit Court over-ruled the motion to amend, granted the motion of the appellee, and quashed the summons, and thereupon this appeal was taken.

The summons commanded the Sheriff to summon the appellee “to appear before the Judges of the Circuit Court for Baltimore County, to be held at the Court House at Towsontown, in and for the same County, on the first Monday in March, 1873, to answer an action at the suit of George W. Ritter,” &c.

It was contended on behalf of the appellee that, since the adoption of the Code, Article 75, sec. 84, Avrits issued in this general form are void, inasmuch as that section requires that all writs of summons to answer in civil actions shall state the purpose for which the party is sued, precisely as was previously required in writs of capias ad respondendum. We do not concur in this construction of the statute. After -imprisonment for debt was abolished by the Constitution, the Legislature enacted that suits should be commenced by summons instead of by capias ad respondendum, and that the summons should state the purpose for which the party Avas summoned. The reason of this requirement is obvious. If the summons did not state the purpose for which the party was summoned, it would be impossible for him to know for what purpiose his attendance at Court was required. When the summons states that the party is to be summoned to answer an action at the suit of the plaintiff who is named, he is at once advised that he is summoned, not as a witness, nor for any other purpose, than to defend himself in a suit of the plaintiff who is named in the summons. It is entirely unnecessary that the particular form - or nature of the action should be stated in the summons. Of this he is advised in time to make his defence, by the filing of the nar. The statement of the cause or form of action in the summons could serve no useful purpose to the defendant, since the plaintiff has an undoubted right to change his suit from one form to another, when the ends of justice require it. See 23rd Section of ISt/t Article of the Gode. Even before suits were begun by summons, the capias ad respondendum did not necessarily notify the defendant of the particular nature or character of the suit he had to defend, and especially was this so in actions on the case, in which class were included a great variety of suits differing very much from each other in their nature and character. The summons is in compliance with the 84th section of Art. 15 of the Code, and sufficiently states the purpose for which the defendant is summoned, when it states that he is summoned to answer an action at the suit of the plaintiff, who is named in the summons. But in the case before us, even if the summons had been defective, the motion to quasli was made too late. The appellee was summoned to the first day of the March term, and the motion was not made until both that and the May term had passed, and after the appellee had appeared to the suit and caused the rule nar. to be laid upon the appellant, and after the nar. had been filed. A party desiring to avail himself of a defect in the writ of summons ought to do so during the term to which the summons is returned; otherwise he will he held to have waived his right to avail himself of it.

(Decided 22nd May, 1874.)

As the summons did not require amendment it is unnecessary for us to notice the over-ruling of the appellant’s motion to amend, further than to say, that the 23rd section of Art. 15 of the Code gives the right to amend any of the proceedings, including the writ or summons at any time before the jury retires to make up their verdict, in cases of jury trial, and at any time before judgment is rendered, if the trial is had before the Court.

Order quashing the summons reversed, and cause remaznded.