Bewick v. Muir

Sharpstein, J. This was an action to foreclose a number of liens upon a mine for labor and materials, under the act of 1880. There were forty-five plaintiffs, each claiming a separate lien. Judgment was given for the plaintiffs, and two of the defendants appealed.

1. The summons is sufficient. It states the nature of the action in general terms, and this is all the statute. requires. It is apparent from the statements of the summons that the action in which it was issued was to recover money and to foreclose liens. This is the general nature of the action. It is unnecessary to state whether the right to the money sought to be recovered accrued from work and labor, or from goods sold and delivered, or to state the kind of lien, or on what property the lien attached. All these things appear in the complaint on file, of which filing he is notified by the summons, and if he is not notified, he is bound in law to know it. He is bound to know that a complaint has been filed; for otherwise a summons could not issue. It makes no difference that a copy of the complaint is not served on the party moving. The above is in accordance with the dictum in Lyman v. Milton, 44 Cal. 631. The summons states what the statute requires and all that is needful. The cases decided in Lyman v. Milton, supra, as also Ward v. Ward, 59 Cal. 141, were different [370]from, this, and, as said above, there is a compliance with the dictum in the former case and with the statute. Why require that to be inserted in the summons which must appear in the complaint? Our practice is cumbersome enough without its. being made more so by judicial decision. We cannot understand how it can be said that the summons does not contain “a statement of the nature of the action in general terms." The Code of Civil Procedure provides (which is equivalent to a command to all of the courts of the state) that all its provisions are to be liberally construed, with a view to effect its objects and to promote justice. (Code Civ. Proc., sec. 4.) The objects of the requirements of the statute as to what the summons shall contain are carried out by serving it with a general statement which is specialized in the complaint, and it is injustice to-turn a party out of court or reverse a judgment on a view of the summons merely technical, when the summons points to the complaint where the particular statement is made; and if a copy of the complaint is not served on the moving party, he knows where to find it. When the motion was made at the bar of the court, the complaint was no doubt within reach, or it could have been procured in a moment. King v. Blood, 41 Cal. 816, is precisely in point, and treats the question as it is here, as a perusal will at once show. The court did right in denying the motion.