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ing in the cause after an order had been made to change the place of trial: Thus, where the place of trial named in the complaint (the venue) was Monroe county, and an order was afterwards made changing the place of trial to Albany county, it was held that the venue was not changed, and that a motion for an extra allowance was properly made in Monroe county. Gould v. Chapin, 2 Code Rep., 107; 4 Pr. R., 185. And this decision as to this point was sanctioned by the opinion expressed in Barnard v. Wheeler, Lynch v. Mosher, and Beardsley v. Dickerson, supra. And this section (126) appears confirmatory of the previous practice, except where otherwise provided by consent of the parties or order of the court. Whether under the present provision a change of the place of trial is equivalent to a change of the venue, or transfers the cause for all purposes without or against the consent of all the parties, remains to be determined by judicial decision. (See Mason v. Brown, 6 Pr. R., 483). Section 49 of the judiciary act (Laws of 1847, p. 333), provided only for a change of the place of trial of an issue of fact; and one argument used by Mr. Justice Sill, in Gould v. Chapin, 4 Pr. R., 185, to show that the change of the place of trial was not a change of the venue, or a transfer of the cause for all purposes, was, that no power existed in the courts to change the place of trial of an issue of law. By rule 3 of the supreme court rules it is provided, that in case the place of trial is changed for the reason that the proper county is not specified, as required by section 125 of the code, papers on file at the time of the order making such change shall be transferred to the county specified in such order, and all other papers in the cause shall be filed in the county so specified.

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136. Proceedings when part only of defendants served.

137. When service by publication complete.

138. Proof of service.

139. When jurisdiction of action acquired.

§ 127. [106.] Actions when commenced.-Civil actions in the courts of record of this State, shall be commenced by the service of a summons.

This section is identical with section 106 in the code of 1848, and where while that code was in effect, a warrant under the Stillwell act was served simultaneously with, but issued before the service of the summons in the action, the warrant was held to be a nullity, being issued before any action was commenced. Lee v. Averill, 1 Code Rep. 73, 1 Sand. S. C. R., 731. But now, for the purpose of issuing such a warrant, the action is sufficiently commenced by lodging the summons with the sheriff, with intent that it should be served, under section 99. Gregory v. Weiner, 1 Code Rep. N. S., 210. Section 99 in the code as it now stands seems to have rendered this section only a repetition. See sections 99 and 74.

§ 128. [107.] Summons. Requisites of.-The summons shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the State, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service.

This section is identical with section 107 of the code of 1848. It has given rise to some decisions to which we will proceed to refer.

It may be premised that the only mode of commencing an action under the code is by summons (sec. 99, 127), or the obtaining a provisional remedy (sec. 139), Re Fort Plain and Cooperstown Plank Road Co., Ex parte Ransom, 3 Code Rep. 148, Moore v. Thayer. Ib. 176.

It will be observed that this section (128) neither directly or indirectly requires that a summons should name the court or the title of the action; and the form of summons recommended by the commissioners in their first report, coutained neither the name of the court nor the title of the cause. Nevertheless, the weight of opinion seems to be in favor of the insertion at least of the name of the court in the summons. Where the summons is annexed to a copy of the complaint, there can exist no necessity for repeating in the summons the name of the court, or the names of the parties; such information is supplied by the complaint. But where the summons is served without any copy of the complaint, as provided by section 130, then, of course, it becomes necessary to insert the name of the court, and the names of the parties in the summons; otherwise, a defendant would be left in ignorance of where he is to find a complaint filed, who is the plaintiff, and who his co-defendant (if any), and accordingly, in cases where no copy of the complaint was served with the summons, the court held that the summons must state the name of the court. Anon, 2 Code Rep., 75. Walker v. Hubbard, 4 Pr., R. 154. But in subsequent cases (from the reports of which, however, it does not clearly appear whether or not any copy of the complaint was served with the summons), the distinction between the cases in which a copy of the complaint is served with the summons and in which it is not, appears to have been lost sight of, and the courts use language indicative of an opinion that, in all cases, the summons must state the name of the court in which the action is brought. Dix v. Palmer, 5 Pr R., 233, 3 Code Rep., 214. James v. Kirkpatrick, 5 Pr. R, 241; 3 Code Rep., 174. It happened in one case, that the name of the court in which the action was brought, was omitted both in the summons and complaint; and there the supreme court refused a motion for leave to amend by inserting the name of that court. Ward v. Stringham, 1 Code Rep., 118. In another case the summons was served without a copy of the complaint, and without the name of any court appearing thereon. The defendant demauded a copy of the complaint, and one was served entitled "Sup. Court." On motion to set aside the proceedings, it was held that the name of the court sufficiently appeared, and the plaintiff was allowed to amend by entitling the summons and complaint in the "Supreme Court," and the court said it was not analogous to a case where all reference to a court was omitted in the complaint. Walker v. Hubbard, 4 Pr. R., 154. In this last case it must be borne in mind that the place of trial named in the complaint, was not the city of New-York; had it been, the abbreviation Sup. Court" would have left it doubtful whether the "supreme" or the "superior" court was intended by the contraction "sup;" as the place of trial was out of the city of New-York, the inference naturally was that the supreme court was meant. Where a summons was served which did not mention the name of any court [and without any copy of the complaint]. and the defendant disregarded it, and the plaintiff took judgment for want of an answer, the court set the judgment aside, and without requiring the defendant to put in an affidavit of merits. James v. Kirkpatrick, 3 Code Rep, 174, 5 Pr. R., 241. And the court further held, that the defendant had not waived the defect in the summons, by laying by and permitting the plaintiff to take judgment; because, until

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judgment was entered, the defendant was not informed in what court the action was commenced, and could not know in what court he was to move to set the summons aside. Ib. But where, after a summons was served [without any copy of the complaint], and without naming any court, the defendant gave a general notice of appearance, it was held that he thereby waived the defect in the summons. Dix v. Palmer, 3 Code Rep., 214; 5 Pr, R., 233.

And where a summons was served in the form required by the 1st, instead of the 2nd, subdivision of the 129th section, it was held that the summons was clearly irregular, but that the irregularity was waived by a general appearance for the defendant. Webb v. Mott, 6 Pr. R., 440. In the case last cited it appeared by affidavit that the defendant's attorney" served a notice in writing on the plaintiffs attorney, that he was retained by the defendant to defend this action;" this the court held amounted to a general retainer, and a waiver of the irregularity in the summons, that the 7th of the supreme court rules, recognizes by its very language, a special or limited retainer, and which would not be deemed an appearance in the action on the part of the defendant; and that if the defendant's attorney was retained, and appeared only for the purpose of moving to set aside the summons for irregularity, he should have given notice of a special or limited retainer and appearance only.

And now, by section 139 of this code, "a voluntary appearance of a defendant, is equivalent to a personal service of the summons upon him."

A mistake in the form of a summons, is not within section 169, Dibblee v. Mason, 1 Code Rep., 37; therefore, where in an action on contract, to recover the price of goods sold and delivered, and the summons did not state the amount for which judgment would be demanded, but stated that the plaintiff would apply to the court for the relief demanded in the complaint, on motion for judgment, it was held that the mistake in the summons could not be disregarded, and the motion was denied. Ib. And further, that although the court might have the power to amend the summons, yet it could only be done on motion to amend it, and in McCrane v. Moulton, 3 Sand., S. C. R., 736, it was held that a summons cannot be amended without leave of the court.

In that case the plaintiff's attorney, after service of the sunimons, discovered a mistake therein: he made the requisite amendment of course, and re-served the summons. The defendant moved to set aside the amended summons. Mason J., with the concurrence of all the juses of the Superior court, granted the motion, and held that a summons cannot be amended without leave of the court. Section 172 does not apply to a summons which is not a pleading, but process. The power of amendment is in terms confined to the court by section 173.

In one case, Davenport v. Russell, 2 Code Rep., 82, where a party served a summons which, before any proceeding had been taken therein, he discovered to be irregular, and thereupon served an amended summons, it was held in a county court, that there was no objection to such a course. The case is not very fully reported; but it seems to have been decided on the express ground that the defendant was not prejudiced, and is therefore perhaps not inconsistent with the other decisions. For after service of a summons the plaintiff may at any time before the defendant has appeared, or employed an attorney, discontinue the action without costs, and then if he will, serve a new summons; and therefore in cases where the plaintiff discovers the error in his summons before the defendant has appeared, or employed an attorney to appear, whether the plaintiff serves a notice of discontinuance and a new summons or an amended summons, is in fact immaterial to the defendant; although to discontinue and serve a new summons, or obtain an order for leave to amend, is undoubtedly the more correct, and the proper practice.

With reference to that portion of the section which requires the summons to be subscribed by the plaintiff or his attorney, it was held that the attorney there mentioned, meant an attorney-at-law; and where the summons was signed by a person not an attorney-at-law, with the plaintiff's name, "by I. G. Cramer, agent," the court was of opinion that the requirements of the statute had not been complied with. Weare v. Slocum, 1 Code Rep., 105; 3 Pr. R., 397. But where an infant was plaintiff, and sued by guardian, it was held that the attorney conducting the suit, although not strictly the attorney of the plaintiff, might nevertheless subscribe the summons. Hill v. Thacter, 2 Code Rep., 3; 3 Pr. R., 407.

Where, by setting aside a summons and complaint as irregular, the plaintiff would be barred of his right of action by reason of the statute of limitations, the court, in

stead of setting the proceeding aside, will permit an amendment to be made on pay. ment of costs. Weare v. Slocum, 1 Code Rep., 105; 3 Pr. R., 397.

Where, after an auswer of title in a justice's court, an action for the same cause of action is commenced in the supreme or a county court, the summons should allude to the suit before the justice by some appropriate averment. McNamara v. Bitely, 2 Code Rep., 42; 4 Pr. R., 44. But its omitting to do so is not such an irregularity as will entitle the defendant to move to set it aside.

It is presumed, that where a party sues or is sued, in a representative character, the character in which he sues, should be stated after his name in the summons, (1 Arch., Pl. 81); as whether be sues as trustee, executor, or how otherwise.

For the form of the summons when served without any copy of the complaint, see section 130; and when served by publication, see section 135.

§ 129. [108.] (Amended 1849.) Notice to be inserted in certain actions.-The plaintiff shall also insert in the summons a notice, in substance as follows.

1. In an action, arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint, in twenty days after the service of the summons.

2. In other actions, that if the defendant shall fail to answer the complaint within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint.

In reference to the provisions of this [129] section it has been held, that a notice, in a summons under the first subdivision of this section, and that the plaintiff will take judgment for a given sum" with interest" thereon from a specified day, is a sufficient compliance with the provisions here contained; and while the legal rate of interest is seven per cent, that will be the rate assumed where not otherwise specified, and that it leaves nothing to be done but the computation of the legal interest to the day judgment is entered. Swift v. De Witt, 3 Pr. R., 280, 282. 1 Code Rep., 25. In an action wie the 2d subdivision of this section, the complaint named Ulster county as the place of trial, and the summons stated that the plaintiff would apply to the Albany circuit court for the relief demanded in the complaint, it was held, that the summons should have stated that application would be made at the Ulster circuit. Warner v. Kenny, 1 Code Rep., 96; 3 Pr. R., 323. The form of summons now used merely follows the words of the statute, and gives notice that "the plaintiff will apply to the court for the relief demanded in the complaint." without designating any court or time. The supreme court rules, by rule 86, prescribe that the application for judgment for want of an answer, may be made to any special term in the district embracing the county in which the action is triable, or in an adjoining county, or at a circuit court, in the county in which the action is triable, except that when a reference or writ of inquiry is ordered, it is to be executed in the county in which the action is triable. (See rules in appendix). Prior to the making this rule it was held, that all applications for judgment for want of an answer must be made in the county named in the complaint as the place of trial. Anon. 1 Code Rep., 82. Warner v. Kenny, ib., 96. 3 Pr. R., 223. Ib., 413.

An action for a breach of promise of marriage is within the class specified in the first subdivision of this section, where the summons is issued in conformity therewith. Such an action is an action arising on contract-of this there can be no doubt. It is also for the recovery of money-no other relief is sought. It does not, therefore, belong to the "other actions" to which the second subdivision of this section applies. It is true that the proceedings upon default provided by the first subdivision of section 246, do not seemjentirely appropriate to the nature of an action like this. If the complaint be sworn to, the plaintiff, upon the defendant's failure to answer, becomes absolutely entitled to judgment for the amount of damages claimed. If the com

plaint be not sworn to, it then becomes the duty of the clerk to ascertain the amount the plaintiff is entitled to recover. Williams v. Miller, 2 Code Rep., 55. 4 Pr. R., 94. Leopold v. Pophenheimer, 1 Code Rep., 39.

An action to recoverdamages for the breach of a special contract, as, for example, for the breach of a contract by a common carrier to carry and deliver goods, is within the first subdivision of this section (129), and is essentially an action for the recovery of money only. Trapp v. N.Y. & Erie R. R Co., 6 Pr R., 237; 1 Code Rep., N. S., 384. Shankland, J., says, "This, motion is to dismiss the complaint, on the ground that it does not correspond with the summons; or rather, that the notice inserted in the summons is not authorized by the 1st subdivision of the 129th section of the code, because it does not set forth a cause of action arising on contract for the recovery of money only, but is for the recovery of damages for a breach of contract for the non-delivery of a machine sent by the cars of the defendant on the rail road. But the defendant's counsel mistakes the true construction of the 129th section, by reading the first subdivision as if it said, in an action arising on contract for the payment of money only,' instead of,' for the recovery of money only.' It is true, this action is for a breach of a special contract; but, nevertheless, it seeks the recovery of money only, and not any other relief." See, however, Clor v. Mallory, 1 Code Rep., 126, where it was held that an action against a common carrier for the loss of goods intrusted him to carry, was within the 2d and not the 1st subdivision of section 108, now 129. In Clor v. Mallory, the complaint alleged that the defendant "received, and then and there and thereby undertook to carry, transfer, convey, and deliver" certain goods; that he had not delivered and had lost said goods; and claimed damages for the loss of the goods. The summons was framed pursuant to subdivision 1. The defendant appeared and answered. The plaintiff amended his complaint; and on the defendant's not answering the amended complaint, the plaintiff entered judgment for the amount specified in the summons. On deciding a motion to set aside the judgment, Johnson, J., said,

"It seems to me, however, that the plaintiff was wrong in entering up his judgment without notice to the defendant's attorney, as he might do in a case under sub. 1 of section 202 (now 246) of the code. Although this was an action arising upon contract, and the plaintiff sought to recover the damages he had sustained from the alleged breach of it, in money only, I do not regard it as the case contemplated by sub. 1. It may satisfy the language, but not the spirit and intent of the subdivision. I think that was intended to apply to actions upon promissory notes, money bonds, and other contracts for the payment of money upon their face, and not to that large class of actions for the recovery of damages merely on account of the non-performance of some stipulation or duty, other than the payment of a sum of money due, although money only was sought to be recovered as damages.

"The latter class, in my judgment, falls more properly under the provisions of sub. 2 of the section, where the proof of the facts alleged is necessary to enable the court to give judgment. The contract upon which the action was brought was for the delivery of goods as bailee, and not for the payment of money; and the action is in substance for the value of the goods negligently lost. The contract in such a case furnishes no guide for the measure of the recovery; and proof is therefore necessary to inform the conscience of the court as to the value of the goods, and the damage sustained by their non-delivery. It cannot be that the legislature intended to compel the defeudants to put in a defense in every case, and incur the trouble and increased expense of a trial, or submit to whatever the judgment or conscience of the other party might claim by way of damages, when the real damages in every such case might be ascertained by a simple appearance, and the production of proof as to that single question, before the referees or jury. I am not aware that any construction has as yet been given to this section of the code; but I am satisfied the one I have now given it will be found by far the more safe and convenient in practice, and tend materially to lighten the expense and burden of litigation in a vast number of cases which must be constantly arising. If I am right in this, the plaintiff should have given the defendant's attorney eight days notice, and had his damages assessed under the order of the court, before entering his judgment according to the provision of section 125 (now 146)."

In a subsequent case, Flynn v. Hudson River R. R. Co., 6 Pr. R., 308, it was held that an action (i. e. every action) against a common carrier sounds in tort, and requires a notice in the summons pursuant to the second subdivision of this section. The action was to recover for the loss of goods intrusted to defendants to carry. The summons stated that on the defendants' failing to answer, the plaintiff

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