Kauter v. Fritz

Johnson, P. J. The first error complained of is the overruling of the motion of the defendant below to quash and set aside the service, for the reason that the summons had not been issued within sixty days after the filing of the petition. The contention of plaintiff in error is, that the petition was filed October 7, 1889, and summons issued thereon and returned not served ; that the second summons was issued December 27, more than sixty days after the filing of the petition, and that thereby the court lost jurisdiction prior to the issuing of the second summons. Section 20, Code of Civil Procedure, provides : “An action shall be deemed commenced within the-meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a co-defendant, who is a joint contractor or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly and diligently endeavored to procure a service ; but such attempt must be followed by the first publication or service of the summons within sixty days.” „ , 1. Summons cured by mins answer. We think the objection was well taken and the motion should have been sustained; but the defendant below waived any defect in the sum-J mong an¿ the service and return .thereon by submitting himself to the jurisdiction of,the court [759] and asking leave to file an answer, and by filing an answer and proceeding thereafter to a trial of the cause. In the second assignment of error it is urged that, inasmuch as the answer of the defendant below was verified as true, and alleged a set-off and counterclaim — claiming that the plaintiff below was indebted to the defendant below in the sum of $285 over and above the claim of the plaintiff below, with six per cent, interest thereon, and that defendant’s set-off and counterclaim arose out of the same matter set out in the original bill of particulars, — judgment should have been rendered for him on the pleadings because the plaintiff’s reply was not verified. „ ,. 2. Items of damage not “ account.’ We do not think this position is tenable. The defense, while it is claimed as a set-off and counterclaim, asks for damages on account of a failure of the plaintiff below to comply with his agreement with the defendant. It is not in the nature of a statement of account verified, which is admitted as true by failure on the part of the plaintiff to deny it under oath. It is true that defendant below in the third paragraph of his answer sets up that, by failure and refusal of the plaintiff below to permit him to take certain parts of the grain grown on the leased premises, he suffered damages, and itemizes his loss on each kind of crop that he claims he was to have ; but it is ’ n0f; nai¡ure 0f a statement of an account verified, which shall be taken as true by failure to deny under oath. Section 108, Code of Civil Procedure, provides : ‘' In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the [760] same be verified by the affidavit of the party, his agent or attorney.” The third paragragh in the answer of the defendant is simply a statement of the items which he claims constitute his damage by the failure and refusal of the plaintiff below to carry out his contract. 3. Jurisdictionterminated, We think, when the court made its final order overruling the motion for a new trial and dismissing this case, the jurisdiction terminated, and the court could not, three months thereafter, entertain a motion for a rehearing of the motion for a new trial. Having once determined the matter on a motion for a new trial, the court had no authority to hear a second motion for a new trial of the case. Other errors complained of are unnecessary to be noticed, as the judgment must be reversed for errors already indicated. The judgment of the District Court is reversed, and the case remanded with direction to set aside the order granting a new trial and reinstating said case on the docket for trial.