2 S.D. 357 | S.D. | 1891
This was an appeal from an order of the circuit court of Minnehaha county, setting aside the complaint of this action on account of variance from the summons. The complaint was not served with the summons. The summons contained the notice that, if defendant failed to answer the complaint, the plaintiff would ‘ ‘ajjply to the court for the relief demanded in the complaint.” Afterwards the complaint was filed with the clerk, and, upon proof of defendant’s default, judgment was entered against him. The cause of action, as stated in the complaint, was a promissory note" made by defendant to plaintiff, and goods of a certain alleged value sold by plaintiff to defendant. The complaint demanded judgment for a definite sum. The court below set aside the judgment and complaint on account of its variance from the summons. Was this right? In Berry v. Bingaman, 47 N. W. Rep. 825, this court expressed the opinion that, when the summons and complaint are served together, a motion to set aside the complaint because it varies from the summons should not be allowed. The opinion was based upon the conclusion that in such case the defendant, being fully informed by the complaint of the nature of the cause of action, and consequently of what further proceedings plaintiff would be entitled to take against him, in case he did not answer, he could not possible be misled or prejudiced by the particular form of notice used in the summons. This consideration of prejudice we think ought also to be the real and controlling element in determining the question presented in this case, where the complaint was not served with the summons. The statute very definitely directs that the plaintiff shall insert in the summons a notice in one class of cases that he will, upon defendant’s failure to answer, take judgment for the amount named in the complaint; and in another class that, in case of such failure, he will apply to the court for the relief demanded in the complaint. The purpose of .these provisions is obvious.
To say that the defendant must be relieved when, and only when, he has been actually prejudiced by the variance, is to insure a contested question of fact in each case, to be determined by the usually unsatisfactory proceeding of a motion upon affidavits and counter-affidavits; while to hold that injury is presumed, but that such presumption is rebuttable, would leave the same contest of fact, with only the burden of proof shifted. It is more desirable to adopt and xmomulgate a rule so definite and certain, and yet so general, that it shall be known to apply to and control every case of its class, than to attempt to make the rule so flexible and accommodating as to be no rule at all. We conclude, therefore,, after some hesitation, that we shall best respect the x>rovisions of the statute, and their spirit and intent, by holding that when, as in this case, the summons contains the notice provided by the second subdivision of Section 4894, Comp. Laws, being what is usually known as a relief summons, and the complaint is for the recovery of a definite sum of money only on contract, and they are not served together, it will be conclusively presumed that the defendant is prejudiced by the variance. In must cases prejudice would naturally result. If, as required by the statute, the summons truly indicates the nature of plaintiff’s claim by containing the proper notice, the defendant might not be put to the trouble and expense of putting in an answer. Especially would this be so where the summons, as in this case, gives notice of an appli