4 Or. 70 | Or. | 1870
By the Court,
This was an action at law to recover money on account for drugs, dyes, etc., sold by respondents to appellant, on request. Judgment was rendered against defendant in the Circuit Court of Marion County for the amount claimed in the complaint, there being no answer filed thereto by appellant.
The summons served on appellant is entitled, “In the Circuit Court of the State of Oregon, for the County of Multnomah,” and required appellant to appear and answer
The respondents admit the judgment to be erroneous in this respect, but claim this Court has no jurisdiction to entertain this appeal, for the reason that the judgment was rendered in the Court below for want of answer, from which, it is claimed under the Code, no appeal lies. The Code provides that “ any party to a judgment or decree other than a judgment or decree given by confession or for want of answer may appeal therefrom.” (Civ. Code, § 526.) It further provides (Civ. Code, § 246), that a judgment for want of answer can only be rendered when ‘ ‘ it appears that the defendant has been duly served with the summons, and has failed to answer the complaint” within the time allowed by law.
Under the Code any judgment other than one given by confession or for want of answer may be appealed from. It is not claimed that this judgment was given by confession. The only question then to be determined here is, whether it is such judgment as could be taken under the Code for want of answer. If so, no appeal lies and the motion of respondents to dismiss should prevail. The language of the Code is when “it appears that the defendant has been duly served with the summons,” etc. This language, we hold, implies not only that it should appear that defendant has been duly served with a summons, but that the summons served should notify him to appear and answer in the Court where judgment is sought to be rendered against him. To hold otherwise would not only defeat the object of the statute, but open a wide door to fraud. The object of requiring a summons to be served on the defendant is not only to notify him that he is sued, but to
The motion of respondents to, dismiss this appeal is overruled and the judgment of the Court below reversed.