Mencken v. Finch

SHARP, J.— The summons in this case was issued May 25, 1905, and made returnable October 9, 1905. The defendant was returned summoned. The case was continued to October 16, 1905. October 12, 1905, the case was removed by the defendant to the magistrate for the First Ward. On November 3, the parties appeared, trial was had, and a judgment rendered in favor of plaintiff. Defendant appealed. The defendant now moves to dismiss the suit because the summons was illegal, not being- made returnable in forty days. The motion must be granted. Code, Art. 52, Sec. 21, provides : “The process when issued by justices of the peace in civil cases shall be a summons wherein shall be stated briefly the purpose for which the party is summoned, and shall be made returnable before the justice issuing the same, or before some other justice to be named therein, on a day to be stated in said summons, not exceeding forty days from the time of issuing the same.” A summons returnable after forty days is illegal and void. The appearance of the defendant, and the trial on the merits, does not alter the case, the proceedings being void ab initio. O. & M. R. R. vs. Hanna, 16 Ind. 391; Fuller vs. I. & C. R. R. Co., 18 Ind., 91; Allen vs. Stone, 9 Barb., 60; Pantell vs. Dickey, 123 Pa. St., 431; Miner vs. Francis, 3 N. Dak., 549; Diedesheimer vs. Brown, 8 Cal., 339; Battle M. Co., vs. Nanville, 17 Fed. Rep. 126; Thurston vs. Wilkerson, 65 Ga. 557. —Motion granted.