Diblee v. Mason — 2 Edm. Sel. Cas. 20

Majority

p. 20

SUPREME COURT—SPECIAL TERM.

September, 1848.

Before Edmonds, Justice.

Diblee v. Mason.

Headnote

In an action to recover the price of goods sold and delivered, and work done, the summons stated that the plaintiff would apply to the court, on a specified day, for the relief demanded by the complaint. On motion for judgment for want of an answer,

Sdd, That the summons was in the wrong form, and that the motion for judgment must be denied.

That the mistake in the form of the summons was not within section 145 of the Code.

That section 145 of the Code applies only to mistakes in “pleading,” and not to “process.”

That although the court may have power to amend the process, it could only be done on a motion therefor.

A. Dickerson

moved on an affidavit of service of summons, and copy complaint, and of no answer having been received for judgment in this action.

Morris, for the defendant,

opposed the motion, on the ground that it appeared by the complaint that the action was on a contract, and for the recovery of money only, yet that the summons, instead of giving notice that the plaintiff would take judgment for a specified sum, contained a notice that the plaintiff would apply on this day for the relief de

p. 21

manded by the complaint. This, he contended, was snch an irregularity as precluded the plaintiff from taking judgment.

Diclcerson, in reply,

contended that the Code was only directory as to the form of the summons, and that the plaintiff had an option to use either form of summons.

This is an action on a contract for goods' sold, and work done; the summons does not contain a notice of any specified sum for which judgment would be demanded; but, instead, it contains a notice that the plaintiff will apply to the court on a certain day for the relief demanded in the complaint. This, I think, is irregular, and the motion must be denied, and with costs.

The irregularity in this summons cannot be disregarded under section 145 of the Code, as immaterial, because that section relates to pleading, only, and not to process.

The.court may have power to amend the process, but that can only be done on a motion therefor.

“ Motion denied with costs.