Bassett v. Mitchell

The opinion of the court was delivered by HortoN, C. J.: Upon the argument for rehearing in this case, our attention has been called to the record showing that the justice of the peace, upon the action properly commenced [551] before him by Leidigh, Richardson & Company v. A. Bassett, to recover $91.73 with interest, issued a summons for the amount claimed, in accordance with the provisions of §11, chapter 81, Compiled Laws of 1885. The summons so issued had indorsed thereon: “If the defendant fail to appear, the plaintiff will take judgment for $91.73, with interest thereon at the rate of 10 per cent, per annum from the 1st day of October, 1886, and costs of suit. A. EmersoN, Justice of the Peace.” This summons so indorsed was directed to and placed in the hands of G. L. Mitchell, constable, and within the time prescribed by the statute was returned by the constable to the justice with the following certificate of service : “DecemRer 20,1886. — Served the same by leaving a copy thereof, with the indorsements thereon, duly certified, at the usual place of residence of the within-named defendant. G. L. Mitchell, Constable.” “Serving summons, first person, .25. A copy of summons, .15. Total, 40 cts. G. L. Mitchell, Constable.” It appeared upon the trial that the copy of the summons served upon Bassett was indorsed, by mistake of the constable, as follows: “If the defendant fail to appear, plaintiff will take judgment for $19.73, with interest at the rate of 10 per cent, per annum from the 1st day of October, 1886, and costs of suit.” As the original summons was duly issued, indorsed, and returned, we think that the justice had jurisdiction, upon the failure of the defendant to appear, to render judgment for the amount sued for and indorsed upon the writ. The mistake in the indorsement upon the copy of the summons served upon the defendant would render the judgment voidable only — not void. (Dutton v. Hobson, 7 Kas. 196; id. 285.) Section 11, chapter 81, provides: “If the defendant fail to appear, judgment shall not be rendered for a larger amount [the amount indorsed upon the writ] and the costs.” In this case the judgment was not rendered for any amount larger than that sued for and indorsed upon the orig [552] inal summons. The original opinion was promulgated upon the belief that the indorsement upon the original summons was for a less amount than the judgment rendered; and therefore it was held that the judgment in excess of the indorsement on the writ was void. At the time that opinion was written, we understood that the copy of the summons served upon the defendant was a true copy of the original summons, and therefore that the indorsement upon the original summons was of the same amount as the indorsement upon the copy. A reexamination of the record convinces us that we were mistaken as to the evidence introduced upon the trial; therefore the judgment heretofore entered in this court will be vacated, and the judgment of the district court will be affirmed. All the Justices concurring.