222 N.W. 281 | Minn. | 1928
The action was commenced by service of a summons and complaint. The summons was entitled: "State of Minnesota, County of Hennepin, Municipal Court, City of Minneapolis." It was in all respects regular in form as a summons in municipal court. It required the defendant to serve a copy of his answer on the plaintiff's attorneys within ten days after service of the summons. The time for answer in actions in municipal court is ten days, while in district court it would be 20 days. The complaint was attached to the summons and a copy of each, fastened together, delivered to defendant. *598 The complaint and copy thereof served on defendant were entitled in the district court of Hennepin county, fourth judicial district. It is this variance between the captions of the summons and complaint which is made the basis for the motion.
Actions are commenced in this state in district court by service of a summons. G. S. 1923, § 9224. The same provision is in the law governing commencement of actions in the municipal court.
It is the general rule that a summons, regular in form and properly served, confers jurisdiction over defendant's person. Millette v. Mehmke,
The failure to file or serve the complaint at the time of service of the summons is only an irregularity. Millette v. Mehmke,
The summons, while not process in the strict sense of the term, is the notice by which jurisdiction over the person of the defendant is acquired. Francis v. Knerr,
G. S. 1923, § 9250, provides that the complaint shall contain, among other things, "the title of the action, naming the court and the county in which it is brought, and the parties, plaintiff and defendant, therein." The complaint shall also state facts constituting a cause of action and contain a demand for the relief desired by plaintiff. The complaint is governed by the rules as to pleadings. It may be amended as a matter of right at any time before the time to answer expires, and thereafter by motion and leave of court before or at the trial. It would not seem that jurisdiction over the *599 person of the defendant is acquired by or is dependent upon the complaint. The complaint may be served with the summons or filed in the court, but the failure either to serve or file the complaint at the time the summons is served, as before noted, is held to be an irregularity only and not to go to the jurisdiction of the court.
In Evangelical L. H. Assn. v. Schultz,
In Thompson Yards, Inc. v. Standard H. B. Co.
The Iowa cases cited by appellant arose under a statute requiring the filing of a petition naming the court wherein the action is brought and the parties and invoking the jurisdiction of that court. It was held at an early date in that state that jurisdiction depended first, upon the law, and second, upon the petition. Morrow v. Weed,
In Eggleston v. Wattawa,
The New York case of Fisher v. Ogden,
We conclude that the failure correctly to name the court wherein the action is brought in the caption of the complaint or the failure to name therein any court is an irregularity, subject to amendment and not fatal to jurisdiction under our laws. If misled, defendant may seek appropriate relief.
Order affirmed.