at his office in the township,1 at a time specified therein,2 and it In Mississippi, except as to freeholders and householders. Cain v. Simpson, 53 Miss. 521, and peculiarly so in Illinois. Durfee v. Grinnell, 69 Ill. 371. Of course, in this connection the word "township" is equivalent to, and is used as the limited place within, the territorial limitation of the justice's jurisdiction for hearing causes. See generally, People v. Meech, 101 Ill. Meech, 101 Ill. 200; Geraty v. Reid, 78 N. Y. 64. See also note 5 to tit. JURISDICTION. Where to be Exercised, supra. In New Jersey, "any fit place in the county, where the justice expects to be to attend the return." Honeyman's Practice (N. J.) 121. See also Johnson v. Holmes, Penn. (N. J.) 98; Drake v. Berry, 13 Vroom (N. J.) 61. 2. "It is essential to the validity of a summons in an action instituted in a justice's court that the time when and the place where the defendant must appear before the justice shall be distinctly stated in it" Murfree's Justice, Practice, § 291; Stat. Minn. (1878), ch. 65, § 12, p. 677. In Illinois, "a certain place, day and hour." Rev. Stats. Ill. (1880). ch. 79, § 17. In Ohio, "at a time noted." Rev. Stats. Ohio (1880), § 6475. In Kansas, “to appear before such justice at his office in township at a time specified therein." Comp. Laws Kan. (1885), ch. 81, § 11. A hearing set for "10 o'clock -noon" is void. Seurer . Horst, 31 Minn. 479. "Two o'clock noon" is defective. Camman v. Perrine, 4 Hals. (N. J.) 253. "Twelve o'clock afternoon" is defective. Ross v. Ward, 1 Harr. (N. J.) 23. The time should be written. Ross v. Ward, 1 Harr. (N. J.) 23. But if in figures it is not fatal. Cooper v. Roberts, 1 Harr. (N. J.) 353, 360. But if the hour be omitted, or be an impossible one, there can be no amendment with out defendant's consent. Honeyman's Practice (N. J.) 121. But the defect is waived by going to trial without proper objection. Seurer v. Horst, 31 Minn. 479; Anderson v. Hanson, 28 Minn. 400. See also note 5-tit. JURISDICTION. Where to be Executed, supra. Generally the place is the township, yet in New Jersey it may be "any fit place in the county where the justice expects to be to attend the return." Johnson . Holmes, 1 Penn. (N. J.) 98; Drake v. Berry, 13 Vroom (N. J.) 61. See also note 10 last above. 3. Comp. Laws Kan. (1885), ch. 81, § 11. This must be specifically set forth in New Jersey. Hopper v. Steelman, 2 Penn. (N. J.) 660. In Illinois, "for failure to pay him a certain demand, not exceeding two hundred dollars" (being amount of justices' jurisdiction). Rev. Stats. Ill. (1880), ch. 79, § 17. In Missouri, the statute provides, "stating also the nature of the suit and the sum demanded," and the form of summons provided by it recites, "to answer the complaint of founded upon an instrument of writing (or note, or account, or for a trespass, as the case may be). 1 Rev. Stats. Mo. (1879), §§ 2859, 2860. The summons is a nullity if it does not state the nature of the suit and the sum demanded. Brandenburger v. Easley, 78 Mo. 659, unless otherwise advised of it. Kansas v. Johnson, 78 Mo. 661. In Maine, the "debt or damages demanded" is the ad damnum in the writ which gives the trial justices exclusive jurisdiction in certain cases. Cole v. Hayes, 78 Me. 539. The general nature of plaintiff's claim "should be set out in the summons." Murfree's Justice Practice, § 290. See Stats. Minn. (1878), ch. 65, tit. 2, § 12. The cause of action must be stated with sufficient certainty to show the legal character of the action. Jeffery v. Underwood, I Pike (Ark.) 108. The amount of plaintiff's claim need not be stated in the summons, but the amount, interest and costs must be endorsed on it. Hedinger v. Silsbee, 2 Greene (Iowa) 363. Compare Noville v. Dow, 94 N. Car. 43. The defendant need not not be rendered for more than the endorsed amount and costs.1 The summons must be made returnable in a certain number of days from its date, and, unless accompanied with an order of appear where the summons shows the amount claimed is beyond the justice's jurisdiction. Yager v. Hannah, 6 Hill (N. J.) 631; Duffy v. Averitt, 5 Ired. (N. Car.) 455; Ryan v. Doyle, 40 How. Pr. (N. Y.) 215. See 27 Cent. Law Jour. 525. But if the summons does not state the nature of plaintiff's claim the irregularity is waived by a general appearance in the action, and especially is this so if the compiaint is served with the summons. Hewitt v. Howell, 8 How. Pr. (N. Y.) 346; Carver v. Shelly, 17 Kan. 472; Fond du Lac . Bonesteel, 22 Wis. 251; Baxter v. Arnold, 9 How. Pr. (N. Y.) 445. But compare King v. Blood, 41 Cal. 317; McCoun v. N. Y. etc. R. Co., 50 N. Y. 176; Sweeny v Schultes (Nev.), 5 West Coast Rep. 662; Dyas v. Keaton, 3 Mont. 495. 1. The amount need not be stated in the summons, but the amount, interest and costs must be endorsed on the summons. Hedinger v. Silsbee, 2 Greene (Iowa) 363. See also Frinckh v. Evers, 25 Ohio St. 82; Watson v. McCartney, I Neb. 131; Rev. Stats. Ohio (1880), § 6475; Honeyman's Practice (N. J.) 122, in which the author says, "in order that, if the defendant desires, he may pay the debt and avoid further proceedings." In Illinois, the statute provides, "the justice shall endorse on the back of every summons the sum demanded by the plaintiff, with the costs due thereon, and the defendant may pay the same to the constable in whose hands such process may be, who shall give a receipt therefor, which shall exonerate the defendant from the debt and all further costs." Rev. Stats. Ill. (1880), ch. 79, § 18. The same is the law in Missouri, but it is there provided, "But the failure of the justice to so endorse such summons shall in nowise affect the same or any service or proceeding in the case. I Rev. Stats. Mo. (1879), ch. 44. § 2859. In Ohio and in Kansas, the amount must be endorsed on the summons, and "if the defendant fail to appear judgment shall not be rendered for a larger amount and costs." Comp. Laws Kan. (1885), ch. 81, § 11; Rev. Stats. Ohio (1880), § 6475. See also Watson v. McCartney, 1 Neb. 131; Williams v. Hamlin, I Handy (Ohio) 95; 1 Nash Pl. & Pr. (4th ed.) 67. But compare Knowles v. Armstrong, 15 Kan. 371; Weaver v. Gardner, 14 Kan. 347. These last cases hold that such law applies to actions for the recovery of money only. But the want of this endorsement on the summons is waived by a general appearance. Hedinger v. Silsbee, 2 Greene (Iowa) 363. See North etc. R. Co. v. Akers, 4 Kan. 453; Bury v. Conklin, 23 Kan. 460; Manhard v. Schott. 37 Mich. 234; Dailey v. Kennedy (Mich.), 31 N. W. Rep. 125. See also Auspach 7. Ferguson, 71 Iowa 144; McKee 7. Metraw, 31 Minn. 429; Seurer v. Horst, 31 Seurer v. Horst, 31 Minn. 490; Griffin v. Van Meter, 53 Mo. 430. 2. Comp. Laws Kan. (1885), ch. 81, § 12, which provides "not more than twelve days from its date." But in ac tions against two or more jointly or jointly and severally liable who live in adjoining counties the action may be brought before the justice of the county wherein either of the defendants reside or may be summoned, and the justice is empowered to issue a summons to the sheriff of "any other county for service to bring in all codefendants who may be served in such county." When sent to any other county for service "it shall be returnable not more than thirty days from its date," and if not accompanied by an order of arrest, it must be served at least twenty days before time of appearance. Laws of Kansas (1887), ch. 169, § 1, p. 251, which amends the former law. In Illinois, it must be returnable "not less than five nor more than fifteen days from the date." Rev. Stats. Ill. (1880), ch. 79, § 17. In Ohio, "not more than twelve days from its date." Rev. Stats. Ohio (1880), § 6476. In New Jersey, "not less than five nor exceeding fifteen days from the date.” Rev. Stats. N. J. (1877), p. 541, § 17. In Michigan, against nonresidents, not less than two nor more than four days. How. Stats. Mich. (1SS4), § 6829. In Georgia, if the amount exceeds fifty dollars, twenty days. Code Ga. (1878), § 4130. And this is jurisdictional. Mitchell v. Bresswell, 59 Ġa. 532. It is held in Missouri that a summons made returnable in less time than the law permits is void. Sanders v. Raines, 10 Mo. 770; Williams v. Bowers, 26 arrest, it must be served at least a certain number of days before the time of appearance.1 b. ALIAS AND PLURIES WRITS.-The mere fact of the issuing of a summons, however, does not give the justice jurisdiction of the person; that can be acquired only by service of summons, or process upon the defendant or his appearance in court.2 In some States, when the summons is returned unexecuted, the plaintiff may have alias and pluries process issued, and if part of the defendants, where more than one are served, and others not served, there may be alias summons issued for the others. If judgment be taken against those served, without dismissing as to those not served, the judgment operates as a dismissal as to those not served.3 "If a summons regularly issued is returned unexecuted, the plaintiff may issue a series, if necessary, of alias and pluries writs until he secures personal service on the defendant, and that service relates back to the first summons duly issued for all purposes relating to the due commencement of the suit." 4 c. WAIVER OF DEFECTS IN SERVICE.-The summons must be served in the manner prescribed by the statute of the State in which the proceedings are had before the justice. But a Westenhaver, 42 Mich. 593; Murfree's Justice Practice, § 290. Mo. 601, and a judgment rendered thereon is also void. See provisions of the statute. I Rev. Stats. Mo. (1879), ch. 44, § 2861. See statutes of the several States. 1. This is usually three days. Code Neb. (1881), §§ 895, 915; Rev. Stats. Ohio (1880), § 6476; Comp. Laws Kan. (1885), ch. 81, § 12; Laws Kan. (1887), ch. 169; Rev. Stats. Ill. (1880), ch. 79, § 17. But the time is not uniform in all the States. In New Jersey, it is five days at least. Rev. Stats. N. J. (1877) 541, § 17. In Missouri, it is at least ten days. Rev. Stats. Mo. (1879), ch. 44, § 2861. These citations will serve as illustrations. The rule for computing the time is to exclude the first day and include the last. Comp. Laws Kan. (1885), ch. 8o, § 722; Gribbon v. Freel, 93 N. Y. 93; Neitzel v. Hunter, 19 Kan. 221. Generally see Jacobs v. Graham, 1 Blackf. (Ind.) 391; Chiles v. Smith's Heirs, 13 B. Mon. (Ky.) 461; Wort v. Finley, 8 Blackf. (Ind.) 335. The day of appearance in a justice summons being the 29th of the month, it is held, the summons was properly served on the 26th. White 7. German etc. Co., 15 Neb. 660. If the last day be Sunday it must be excluded in the computation of time. Douglas v. Rinehart, 5 Kan. 396; Simonson v. Durfee, 50 Mich. 80. 2. Bell v. Dart, 54 Ill. 526; Vliet v. 3. Murfree's Justice Practice, §§ 298, 298; citing Root v. Dill, 38 Ind. 169; Kittering 7. Norville, 39 Ind. 183. 4. Murfree's Justice Practice, § 312, and cases cited. See also Rev. Stats. Ill. (1880), ch. 79, § 20. A justice in Michigan has no jurisdiction to issue a second summons and follow it with an attachment unless the statutory requirements as to service have been complied with, e. g. in making a diligent effort to obtain personal service, and taking full time allowed before returning defendant "not found." Isabelle v. Iron Cliff Co., 57 Mich. 120. See also Howell v. Shepard, 48 Mich. 472. 5. There is just variation enough upon this subject in the various States to preclude the generalization of the method of service, and, therefore, the statute of the State in which the question arises must be carefully consulted. In Ohio and in Kansas, service is made by delivering a copy of the summons, with the endorsements thereon, certified by the constable or person serving the same to be a true copy, to the defendant, or leaving the same at his usual place of residence. An acknowledgment on the back of the summons, or the voluntary appearance of a defendant, is equivalent to service. Rev. general appearance waives all defects or imperfections in the service of process.1 d. ARREST AND BAIL.-While the statutes of many of the States provide for civil arrest, yet in most of the States arrest in civil actions is limited to "circumstance of flagrant fraud, perpetrated by the defendant and made to appear by the affidavit of the plaintiff. Wherever, by the law of any State, an arrest of the person of the defendant can be lawfully made under the process of a court of record, under like circumstances, and upon a similar showing, the same process against the person may be issued by a justice."2 But the arrest is, generally, auxiliary to the action, and the order therefor usually accompanies a summons. A justice may set aside the order of arrest, but he does not thereby lose jurisdiction of the case, as the summons served Stats. Ohio (1880), § 6476; Comp. Laws Kan. (1885), ch. 81, 12. In New Fersey, the justice makes the copy and delivers it with the original to the constable. Honeyman's Practice (N. J.) 123. The service is made as in the above named State, yet it is held there that it is only when the defendant is not found that the service can be made by leaving a copy at his house. Polhemus v. Perkins, 3 Green (N. J.) 436. In Missouri, the service is by reading the summons to the defendant, or by delivering to him a copy of it, or by leaving a copy of it at his usual place of abode with some person of the family above fifteen years of age. If defendant refuse to hear it read, or refuse to receive a copy of it, the offer by the officer to read it, or deliver a copy and the defendant's refusal is sufficient service. Rev. Stats. Mo. (1879), ch. 44, § 2861. In Illinois, if the defendant evade the service, or not listen to the same, or secrete himself, then the officer serves the summons by leaving a copy at his place of residence with some person of the age of ten years or upwards, and make a special return of when and how served, and if the justice is satisfied that defendant evaded the service by reading, and that he is sufficiently notified and summoned, the case shall proceed to judgment. Rev. Stats. Ill. (1880), ch. 79, § 19. A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of these officers can be found, by a copy left at the office or usual place of business of such corporation, with the person in charge of it. When the defendant is an incorporated insurance company having an agency in the county where the suit is brought, service may be had on the chief officer of the agency. If defendant is a foreign corporation with a managing agent in the State, service may be made on the agent. If defendant is a minor under fourteen years of age the service must be on him and his guardian or father; if neither can be found, then upon the mother or person having care and control of the infant, or with whom he lives. If neither can be found, or if the minor be over fourteen years of age, service on him alone is sufficient. Comp. Laws Kan. (1885), ch. 81, §§ 13, 14, 15, 16; Rev. Stats. Ohio (1880), §§ 6477-6481; Rev. Stats. Mo. (1879), ch. 44, §§ 2861, 2865; Rev. Stats. Ill. (1880), ch. 79, § 21; Honeyman's Practice (N. J.) 126; Boone's Law of Corporations, 152. See Ruthe v. Green § Bay etc. R. Co., 37 Wis. 344. The first proceeding after return of summons served upon an infant is to appoint a guardian. Harvey v. Large, 51 Barb. (N. Y.) 222. 1. McKee v. Metraw, 31 Minn. 429; North etc. R. Co. v. Akers, 4 Kan. 453Bury v. Conklin, 23 Kan. 460; Fleming v. Munn, 61 Miss. 603; Ruthe v. Green Bay etc. R. Co., 37 Wis. 344. 2. Arrest and Bail.-Murfree's Justice, Practice. § 322. For a collection of the law of the various States, and statutes cited, see Murfree on Sheriffs, §§ 206, 236. See title ARREST (Civil Cases), vol. 1, p. 719. See also BAIL, Am. & Eng. Encyc. of Law, vol. 2, p. 35. supports that.1 "The right to arrest or imprison a defendant forms no part of the contract or right of action, but is merely a remedy, and a statute authorizing such remedy may be repealed at any time by the proper legislative authority, without impairing the obligation of the contract or violating in any respect the constitution of the United States." 2 In some States, arrest and imprisonment are absolutely abolished, while in others the proceedings are permitted in certain instances to a limited extent.3 e. PUBLICATION OF SUMMONS.-I many of the States service by publication of summons is permitted, but this, generally, is limited to cases where there has been an attachment issued at the commencement of the action, and property has been seized thereunder, and the summons has not been, and cannot be served upon the defendant in the ordinary way,5 or under the same circumstances proceedings in garnishment have been had, and served upon the garnishee. 1. McNeary v. Chase, 30 Hun (N. Y.) 491. It is held that issuing the order of arrest is a ministerial act of the justice, and if it be improperly done, it is a breach of duty making him and his bondsmen liable. Place v. Taylor, 22 Ohio St. 317. 2. Murfree on Sheriffs, § 205; citing Beers v. Haughton, 9 Pet. (U. S.) 329; Mason v. Haile, 12 Wheat. (U. S.) 370; Gray v. Monroe, 1 McLean (U. S.) 528; People v. Carpenter, 46 Barb. (N. Y.) 619. 3. See ARREST, vol. 1, p. 730. See See also IMPRISONMENT FOR DEBT, vol. 10, p. 212, et seq. 4. Publication of Summons.-In Missouri, alternative service is permitted by posting notices in public places, but in this proceeding the justice's record must sufficiently show, in connection with the return of the officer, that the law has been complied with in this respect. Urton v. Sherlock, 61 Mo. 257. 5. In Kansas, the statute provides that when defendant's property is taken under the attachment, and it appears that the summons issued in the cause has not been and cannot be served on defendant in the county as the law requires, the justice shall continue the cause not less than thirty, not more than fifty days; then the plaintiff shall publish, three consecutive weeks, a notice in a newspaper of the county, or if none, then in one of general circulation therein, stating names of parties, the time when, by what justice, and for I what sum the attachment was issued, and when the cause will be heard, and upon proof of such publication the action shall proceed as if the summons had been duly served. Comp. Laws Kan. (1885), ch. 81, § 35. A similar law exists in Missouri, but the publication is had "by four written or printed advertisements, set up at four public places in the county," etc. Rev. Stats. Mo. (1879), ch. 6, § 473. Also in Ohio as in Kansas, Rev Stat. Ohio (1880), § 6496. In Illinois, but there, upon the continuance the justice "shall immediately prepare a notice to be posted up at three places in the neighborhood of the justice," etc. Rev. Stat. Ill. (1880), ch. 11, § 50. For New Jersey, see Honeyman's Practice, P. 344, § 597. And the publication must be proved before the justice. Conover v. Čonover, 2 Harr. (N. J.) 187. See also Newman v. Manning, S9 Ind. 422; Wilkinson v. Moore, 79 Ind. 397. See also Victor etc. Co. v. Justice Court, 18 Nev. 21. 6. Murfree's Justice, Practice, § 329, and cases cited. Also Comp. Laws Kan. (1885), ch. 81, § 54d. And no judgment can be rendered against the garnishee (where no service is had on defendant of the summons, and no property attached) until such publication is had; and the justice record must show the publication and proof of it. Ohio etc. Co. v. Alrey, 43 Ind. 180; Newman Newman v. Manning, S9 Ind. 422; 89 Urton v. Sherlock, 61 Mo. 257; Andrews v. Powell, 27 Ind. 303. |
