Stanquist v. Hebbard

California Supreme Court Oct 8, 1898 No. S. F. No. 1502Published

Before: Garoutte

AI Brief

AI-generated · verify before citing

Holding. The court held that a summons following the literal language of Section 407 of the Code of Civil Procedure is sufficient and valid, even if the relief requested is stated in the alternative.

Issues

Whether a summons is void for failing to state the nature of the cause of action.
Whether a summons is void because it states the relief sought in the alternative as provided by statute.

Disposition. Writ issued

Quotations verified verbatim against the opinion

“The summons under consideration follows literally the language of the code and must be held sufficient.”

“The legislature had the power to prescribe the contents of a summons, omitting therefrom all matters now found in subdivision 3 of the section.”

“If the legislature in its wisdom saw fit to frame this statute in the alternative form, as to the relief to be demanded by the plaintiff, it certainly had the power so to do.”

Synopsis

Summons—Contents—Power op Legislature.—The legislature has the power to prescribe the contents of a summons, and to omit therefrom what was previously required, and may omit any notice of the contents of the complaint, or of the relief sought therein, and may regulate such notice, without interfering with any constitutional requirement.

Id.—Following Language of Code.—A summons which follows the literal requirements and language of the code must be held sufficient.

Id.— Statement op Nature op Action.—Under section 407 of the Code of Civil Procedure, as now in force, the summons need not state the nature of the cause of action nor the amount for which plaintiff will take judgment; but the defendant must look to the complaint alone to ascertain the cause of action, and the particular relief sought.

Id.—Alternative Notice op Belief—Divorce Suit.—A summons in an action for a divorce is not rendered void by a notice in the alternative form literally prescribed by section 407 of the Code of Civil Procedure, “that unless the defendant so appears and . answers, the plaintiff will take judgment for any money or damages demanded in the complaint, as arising upon contract, or will apply to the court for any other relief demanded in the complaint.’’

Id.—Altebnative Notice not Essential—Substantial Compliance with Statute.—A summons based on a complaint on contract for money or damages only, or a summons based upon a complaint asking for equitable relief only, would not be void if not worded in the alternative; but, in either case, a notice following the statute so far as to correspond only to the nature of the relief sought in the complaint would substantially comply with the statute.

GAROUTTE, J. This is a petition for a writ of mandate to compel respondent, as judge of the superior court, to proceed with the trial of the case of Sianquist v. Stanquist. The action is one of divorce, and personal service of the summons was had. The judge refuses to proceed further with the trial, upon the ground that the summons is defective in material parts, and by reason of such defects no jurisdiction over the person of the defendant has been obtained.

It is first insisted that the summons is void because it does not state the nature of the cause of action alleged against defendant. A sufficient answer to this contention is found in the fact that the statute which provides what matters shall be stated in the summons fails to make such a requirement. While it might be a convenience to a defendant to be able to ascertain from the face of the summons the nature of the action brought against him, yet, being a convenience merely, the legislature has the right to deprive him of it. None of his constitutional rights are denied him by reason of a failure upon the part of the state [270]legislature to require the summons to include a general statement as to the nature of the cause of action.

The Code of Civil Procedure, section 407, now reads: “The summons must be directed to the defendant, signed by the clerk and issued under the seal of the court, and must contain: . . . . 3. A notice that unless the defendant so appears and answers the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon contract, or will apply to the court for any other relief demanded in the complaint.”

The summons in the present case, following the very language of the statute, states: “You are notified that, unless the defendant so appears and answers, the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon contract, or will apply to the court for any other relief demanded in the complaint.”

It is now insisted that the summons is void because the relief asked for is stated in the alternative. Prior to the last session of the legislature, section 407, as to this matter, provided: “4. In an action arising on contract for the recovery of money or damages only, a notice that unless the defendant so appears and answers the plaintiff will take judgment for the sum demanded in the complaint (stating it); 5. In other actions a notice that unless defendant so appeal’s and answers the plaintiff will apply to the court for the relief demanded in the complaint. The name of the plaintiffs attorney must be indorsed on the summons.”

Stanquist v. Hebbard

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief