actions in the superior court, which is a consolidation of the common law, equity, admiralty, and ecclesiastical courts of general jurisdiction, are now commenced by summons.1

Provision is now very generally made for the publication of notice of the commencement of an action where the defendant can not be personally served with process, and constructive service is allowed. In some of the states. this notice consists of the publication of the summons, in which case it is the same writ but a different mode of serving it. In others, a notice of the pendency of the action is published, containing the same matter in substance as is required to be set out in the summons, citation, or subpena, as the case may be.

In the appellate courts provision is usually made for the giving of notice, or issuance of citation, or other form of writ which constitutes notice to the adverse party, but the statutory provisions for such notices are different in the different states.2

36. REQUISITES OF PROCESS.-Under the common law system of practice much depended upon the form, as well as the substance, of the writ which was the beginning of the action. Actions were divided into arbitrary classes, and a particular form of writ was necessary for each of these classes. If, therefore, a writ not applicable to an action brought was used, the party making the mistake was turned out of court.3 But at the present day the form of the writ is regarded as of but little consequence. Its object is to give the defendant such notice of the commencement and object of the action or proceeding that he may have an opportunity to appear and make his defense." Therefore, if a summons or other process, or notice. is is

1 Ante, sec. 3; Foulke's Ac. in Sup. Ct. 50, 51.

Williams v. Hutchinson, 26 Fla. 513; 7 So. Rep. 852 Elliott's App. Pro., secs. 171, 172.

3 Ante, sec. 9.

Ante, secs. 32, 33, 34; Bollinger v. Manning, 79 Cal. 7; 21 Pac. Rep. 375; Shephard v. Brown, 30 W. Va. 13; 3 S. E. Rep. 186.

sued and signed by the proper person, and, if required, under the proper seal, and directed to the proper officer, and notifies the defendant that an action has been, or will be, commenced against him by the plaintiff, the cause of action, in general terms, and the time and place where the defendant may appear, it is usually held sufficient to give the court jurisdiction. It makes no difference by whom the writ is prepared or whether it is filled out before or after the seal and signature of the clerk is attached.2

Some cases go so far as to hold that a party is bound to appear and ascertain the nature of the cause of action alleged against him, and that he can not escape the consequences of his failure to do so upon the ground that the summons did not fully inform him of the nature of the cause of action or correctly describe the relief sought.3 But where the substance and form of notice to be given is provided by statute the notice given must conform, substantially, to the statute. So where a form of summons is prescribed by a rule of court.5

If the notice is such that, notwithstanding its defects, it can be understood, and the defects are such as can not mislead the party, it will be upheld."

A summons, or other notice, may be defective or irregular, and therefore subject to be quashed or set aside on motion, and yet be sufficient to give the court jurisdiction.7

1 Elliott's App. Pro., secs. 170-172; Patmor v. Rombauer, 41 Kan. 295; 21 Pac. Rep. 284; Jewett v. Garrett, 47 Fed. Rep. 625.

2 Potter v. John Hutchinson M'f'g Co., 87 Mich. 59; 49 N. W. Rep. 517; Jewett v. Garrett, 47 Fed. Rep. 625.

3 Freeman v. Paul, 105 Ind. 451; 5 N. E. Rep. 754.

Allen v. Strickland, 100 N. C. 225; 6 S. E. Rep. 780; Simmons v. Cochran, 29 S. C. 31; 6 S. E. Rep. 859; Atchison T. & S. F. R. Co. v. Nicholls, 8 Colo. 188; 6 Pac. Rep. 512; Lyman v. Milton, 44 Cal. 630; Durham v. Betterton, 79 Tex. 223; 14 S. W. Rep. 1060; People v. Greene, 52 Cal. 577; Streeter v. Frank, 3 Pin. (Wis.) 386; Dyas v. Keaton, 3 Mont. 495; Higley v. Pollock, 27 Pac. Rep. 895.

5 Chamberlain v. Bittersohn, 48 Fed. Rep. 42.

McAllẹp v. The Latona, 3 Wash. Ter. 332; 19 Pac. Rep. 131; Burroughs v. Norton, 48 How. Pr. 132; Boyd v. Weil, 11 Wis. 58; Higley v. Pollock, 27 Pac. Rep. 895.

7 Ante, secs. 13, 22, 23; post, sec. 40; Quarl v. Abbott, 102 Ind. 233; 1 N. E.

But it must be sufficiently certain to inform the party of the matter he is called upon to answer.1

Where the action is for a money judgment the amount claimed must be set out in the summons.2

In many of the states summons is not made returnable on any specified return day, but the defendant is given by law a certain number of days after service of the writ to answer. Under such a statute, while it may be an irregularity to fix a different time for answer in the writ it does not render it invalid or affect a judgment rendered upon it.3

The name of the person to be summoned must be inserted in the writ. But a variance in the name will not vitiate the service in all cases if service of the writ is actually made on the proper person. In such case the party has notice, although irregular, and may object to its sufficiency on the ground of variance in the name, but if he does not the judgment rendered is not void for want of jurisdiction."

The writ must be directed to some officer or person authorized by law to execute it or it is void."

If the statute directs the issuance of a writ to one officer, only in case some other officer is disqualified, from interest or some other cause, the disqualification must exist or the writ can not be directed to such officer and he be conditionally authorized to execute it.8

Rep. 476; McAllop v. Latona, 3 Wash. Ter. 332; 19 Pac. Rep. 131; Bank of Missouri v. Matson, 26 Mo. 243; 72 Am. Dec. 208.

1 Weiser v. Day, 77 Ia. 25; 41 N. W. Rep. 476; Gundry v. Whittlesey, 19 Wis. 211.

Gundry v. Whittlesey, 19 Wis. 211.

3 Porter v. Vandercook, 11 Wis. 70.

Keller v. Stanley, 86 Ky. 240; 5 S. W. Rep. 477; Lyman v. Milton, 44 Cal. 630; Tex. & Pac. Ry. Co. v. Florence, 14 S. W. Rep. 1070; Southern Pacific Co. v. Block, 19 S. W. Rep. 300.

' Johnson v. Patterson, 59 Ind. 237. But see Southern Pacific Co. v. Block, 19 S. W. Rep. 300.

6 Morgan v. Woods, 33 Ind. 23; Hollingsworth v. Barbour, 4 Pet. 466, 476.

7 Vaughn v. Brown, 9 Ark. 20; 47 Am. Dec. 730.

8 Gowdy v. Sanders, 88 Ky. 346; 11 S. W. Rep. 82.

In some of the states the form of the summons depends upon the nature of the action, it being provided, generally, that where the action is on contract for a money judgment, the summons must notify the defendant that if he fails to appear the plaintiff will take judgment for the sum claimed by him, and in other cases, that unless the defendant appears and answers, the plaintiff will apply to the court for the relief demanded. These useless provisions have given rise to some very perplexing questions. In many cases the summons and complaint do not agree as to the cause of action. In such case, if the summons is served before the complaint is filed, and the complaint subsequently filed contains a different cause of action, and one that would require a summons in a different form, it is usually held that the summons is invalid for the reason that by the incorrect statement in the summons the party may have been misled into allowing a judgment to be taken by default.'

In

But if the summons and complaint are served together, the complaint controls as to the cause of action, and the defendant has full notice of the claim made against him, and notwithstanding the variance between the complaint and the summons, the summons is held to be valid. other words, if it appears that the defendant could not have been misled or injured by the discrepancy, the summons will be held sufficient even as against a direct motion to set it aside.3

But it has been held that unless the defendant has done something to waive the defect, it will be conclusively presumed that he was injured by the failure to comply with

1 Brown v. Eaton, 37 How. Pr. 325; St. Paul Harvester Co. v. Forbreg, 50 N. W. Rep. 628.

2 Brown v. Eaton, 37 How. Pr. 325; City of Fond du Lac v. Bonesteel, 22 Wis. 251; Berry v. Bingaman, 47 N. W. Rep. 825; Higley v. Pollock, 27 Pac. Rep. 895; St. Paul Harvester Co. v. Forbreg, 50 N. W. Rep. 628; Chamberlain v. Bittersohn, 48 Fed. Rep. 42.

3 McCoun v. N. Y. C. & H. R. R. Co., 50 N. Y. 176; Clark v. Palmer, 90 Cal. 504; Clark v. Gunn, 27 Pac. Rep. 375; Berry v. Bingaman, 47 N. W. Rep. 825; Sweeney v. Schultz, 19 Nev. 53; 6 Pac. Rep. 44; Higley v. Pollock, 27 Pac. Rep. 895.

the statute.' And there are cases holding that under such circumstances the statute fixing the form of the summons is mandatory, and a failure to comply with it renders the summons fatally defective. It will be noticed, however, that in some, at least of these cases, a copy of the complaint was not required by law to be served with the summons, and if the summons did not conform to the complaint on file, the defect was such as to mislead the defendant. In some of the cases a summons of the kind under consideration is held to be voidable, and subject to be set aside on motion, or on appeal, but not void.3 And in others, that in case of a variance of this kind the fault is in the complaint, which should follow the summons, if the latter is filed first, and that the attack should be upon the complaint on the ground that it does not conform to the summons."

In some of the decisions a distinction is made between cases in which application must be made to the court for relief, and those in which the clerk may enter the default, as to the effect of a mistake of this kind. It is said that if the action is one in which the clerk may enter a default, the defendant can not be injured by a statement in the summons that application will be made to the court for relief, but that, if the action is one in which the defendant is entitled to have the matter submitted to the court, a notice to him that in case he fails to answer judgment will be taken against him for the amount claimed, is one affecting a substantial right, viz., the right to have the court pass upon the question as to the relief to be granted.

Dyas v. Keaton, 3 Mont. 495; Sweeney v. Schultz, 19 Nev. 53; 6 Pac. Rep. 44; St. Paul Harvester Co. v. Forbreg, 50 N. W. Rep. 628.

2

Atchison, T. & S. F. R. Co. v. Nicholls, 8 Colo. 188; 6 Pac. Rep. 512; Smith . Aurich, 6 Colo. 388; Sawyer v. Robertson, 11 Mont. 416; 28 Pac. Rep. 456; Porter v. Hermann, 8 Cal. 619, 625; Dyas v. Keaton, 3 Mont. 495; Chamberlain . Bittersohn, 48 Fed. Rep. 42; Chamberlain r. Mensing, 47 Fed. Rep. 202.

Keybers v. McComber, 67 Cal. 395; 7 Pac. Rep. 838; Ward v. Ward, 59 Cal. 139.

4 City of Fond du Lac v. Bonesteel, 22 Wis. 251.