Burkhardt v. Haycox

Mr. Justice Elliott delivered the opinion of the court. The assignments of error assail the judgment of the court below upon two grounds: Pirst, that the summons does not conform to the requirements of the code; second, that the complaint was not filed within the time prescribed by law. 1. Mere dilatory motions based upon special appearances are not favored under the present practice. It is the policy of the code that all its provisions shall be liberally construed with the view to assist parties in obtaining justice, and that errors and defects in pleadings or proceedings not affecting the substantial rights of the parties shall be disregarded by the courts on appeal or error as well as at nisi prius. Code, sections 78 and 443. Higley v. Pollock, 27 Pac. Rep. (Nev.) 895. 2. The foregoing observations are especially applicable where, as in this case, the special appearance was for the purpose of moving to quash the summons personally served upon each of the defendants. The office of a summons is to notify the defendant that an action- has been brought against him and by whom, the place and court in which the same is brought, the relief demanded, and the time within which he must appear and answer in order to escape a judgment by default. It is no longer necessary that the summons shall state “ the cause and general nature of the action ” as was required by the Code of 1877; nor is it necessary that the summons shall “ state the nature of the action ” as was required by the Code of 1887 before the amendment of 1889. It is true, section 34 of the Code still requires that the sum [342] mons “ shall briefly state the sum of money or other relief demanded in the action; ” but the amendment of 1889 provides that, “ the summons shall not be considered void or erroneous on account of an insufficient statement of the relief demanded, unless the same is manifestly misleading.” Session Laws 1889, p. 71. The summons in the present case does not state in so many words the sum of money or other relief demanded; but it states that the action is brought to “ recover damages for the wrongful taking and conversion by the defendants of certain goods and chattéls * * * owned by plaintiff,” describing the same as set forth in the complaint, and stating that if defendants fail to appear and answer, judgment by default will be taken against them according to the prayer of the complaint. The complaint states the value of the property alleged to have been converted by defendants, and the sum of money demanded in consequence thereof. The summons in this case cannot be considered manifestly misleading in respect to the statement of the relief demanded. The statement was correct as far as it went; besides, it pointed directly to the complaint where the relief was demanded fully stated. The want of a more definite statement in the summons did not, therefore, render the summons void or erroneous ; the statement was not misleading. The opinions in Smith v. Aurich, 6 Colo. 392, and Railroad Co. v. Nicholls, 8 Colo. 188, and other cases, are cited by counsel for plaintiffs in error. These decisions were based upon objections and code provisions-different from section 34 as amended in 1889, and are not, therefore, in point in the present ease. The questions presented in Farris v. Walter, 2 Colo. App. 450, were also different from those considered in this opinion. In the Farris ease the summons contained no statement of the relief demanded. Whether the amendment of 1889 would avail to save such a summons, we express no opinion. . - 3. The objection that the court erred in not dismissing the action below because the complaint was not filed within the [343] time prescribed by tbe Code (sec. 32) is not well taken. The provision that the complaint must be filed within ten days after the summons is issued, or the action may be dismissed, is not mandatory; the authority to dismiss rests in the sound legal discretion of the court; and should not be arbitrarily exercised. Knight v. Fisher, 15 Colo. 176. The complaint in this case was not filed until seventeen days after the summons was dated, but it was filed within five days after the last defendant was served; besides, it does not appear that any motion to dismiss the action for failure to file the complaint in time was interposed in the trial court, and the question cannot be raised here for the first time. The judgment of the district court must be affirmed. Affirmed.