City of Fond du Lac v. Bonesteel

The following opinion was filed at the January term, 1867. DowNER, J. The appellant contends that his motion to set aside the complaint should have been granted, because it does not follow the summons. It is insisted by the respondent that if there is any such irregularity, it was waived by a general appearance of the appellant (defendant below). But a general appearance only waives defects in the sum [253] mons. It is true there are some New York decisions (6 How. Pr. R., 439; 8 id., 346; 9 id., 447) to the effect that a summons in every respect regular on its face is made defective or irregular by a complaint which does not follow it. The rule in such cases before the code was, that the declaration- must follow the summons or process; and that if it did not, the former, not the latter, was irregular. And such we have no doubt now is the correct rule. Balcom, J., in Ridder v. Whitlock, 12 How. Pr. R., 208, well remarks, that “to hold that the complaint should control the summons, instead of the latter controlling the former, as to the nature of an action brought, would be somewhat like making a judgment conform to the execution issued on it. It would be eurrus bovem trahit.” The summons we hold regular; and if there is any irregularity in the complaint, it was not waived by the appearance. "While a majority of the court are inclined to the opinion that the complaint sets out a cause of action in tort, yet we deem it unnecessary to decide that point; for whether the complaint sets out a cause of action in tort or on contract, we do not think there is such an irregularity as the defendant could take advantage of. What was the rule before the code ? Could the defendant, on motion, set aside the declaration in an action at law because the summons or process was in an action on contract, and the declaration in tort ? Chitty (1 Chitty’s Pl., 228) says: “Npon common process by bill in the King’s Bench, or upon a capias or original guare clausum fregit in the Common Pleas, the plaintiff may declare in any cause of action whatever, though the writ in each is trespass. But in bailable actions the declaration must correspond with the cause and form of action in the affidavit, or other process; for otherwise the defendant will be discharged out of custody on filing common bail; but this'will be the only consequence, for the court will not in [254] eucb case set aside the proceedings for irregularity.” Chitty further says, that when the proceedings are by original, the proceedings will not be set aside by reason of variance between the writ and declaration in the cause of action, the only effect of such variance being to entitle the defendant to his discharge on entering common appearance. See also Tidd’s Prac. (8th ed.), 453. In Rogers v. Rogers, 4 Johns., *485, the defendant having been arrested upon a capias ad respondendum with an ae etiam clause upon promises, the court held that the plaintiff in his declaration was bound to follow the writ as to the nature of the action, and set aside the declaration as irregular for not doing it, citing, to sustain them, in part the same authorities cited by Chitty. In Durfee v. Heemstreet, 1 Wend., 305, the same question arose, and counsel insisted that the case in 4th Johnson was a departure from the practice of the King’s Bench, and was not supported by the authorities referred to in that case. But the court said, “ Without deciding this question, it is enough that this court has a right to regulate its own practice;” and adhered to the ruling in 4th Johnson. We are satisfied, after an examination of the authorities, that that ruling was not in accordance with the English practice. According to that practice, the defendant could not crave oyer of the writ, and he could hot therefore take advantage of the variance. In Ball v. Bank of Utica, 6 Cow., 70, the court held that a declaration would not be set aside on motion on the ground of variance between it and the original writ, which was a special one. In Ridder v. Whitlock, above cited, the court held that a variance between the summons and complaint might be taken advantage of on motion. The practice before the code was different in different states; the courts of some holding that the variance could not be taken advantage of by motion, and others that it could. We see no good reason why, where the summons and complaint are both [255] served at the same time, as in this case, or where the defendant appears, and is served with a copy of the complaint, be should be permitted to avail himself of an irregularity by which he cannot be in any way prejudiced. We hold, therefore, that such variance cannot be in any way taken advantage of in such «ases. This ruling, however, is confined ■ to cases where the complaint is served, either with the summons or afterwards on the appearance of the defendant. By the Court. — The order of the circuit court is affirmed.