West Publishing Co. v. Bottineau ( 1885 )

DicKinson, J.

The only question before us is as to whether the writ of replevin issued out of the municipal court of the city of Minneapolis, and the summons served upon the defendant, were authorized, so as to confer jurisdiction upon the court. The defects alleged are that the writ did not state the value of the property, nor command the defendant to be summoned. The summons, made and served in accordance with the practice in the district court, as prescribed by Gen. St. 1878, c. 66, tit. 5, is claimed to have been unauthorized. Section 10 of the municipal court act (Sp. Laws 1874, c. 141, amended by Sp. Laws 1883, c. 48,) provides that when the object of the action is to recover the possession of personal property, the complaint shall be filed with an affidavit and bond, and that “the clerk shall thereupon issue the writ, which may be in form” as set forth in the act. This form includes a statement of the value of the property, and a command to the officer to take the property, and to summon the defendant to appear and answer. But the statute adds: “Or the writ may be in any other form that the court may, by rule, prescribe.” The writ in this case was in accordance with a form which had been prescribed by rule of the court. Section 8 of the statute referred to, as amended, declares that “the provisions of title 5, of chapter 66, of General Statutes of 1878, so far as the same may be applicable, subject to such modifications as the court may by rule establish, shall apply to said municipal court.” This, if unaffected by other provisions of the act, would authorize the summons to be made and served as in actions in the district court. Nothing stands in the-way of the application of this general provision of the law to actions of replevin, excepting the statutory form given; and we think that the power conferred upon the court to prescribe “any other form” in place of that set forth, authorized it to dispense with both the statement of value and the command to summon the defendant, thus leaving the general statute above referred to to control in respect to the summons. The section containing the statutory form is devoted to proceedings for the taking and disposition of the property, and it is apparent that “the writ” there referred to is the writ of replevin. The bare fact that the form prescribed for that writ embraces also a command to summon the defendant is not, in view of the authority conferred upon the court, to be considered as a requirement, beyond the power of a court to change, that the writ of replevin shall also be made process against the defendant. This is not essentially a part of a writ of replevin. Jurisdiction of the defendant may be procured by other means. We are of the opinion that the prescribed form of the writ might be changed, by rule of the court, in any particular, only that it should remain what the act contemplates, — a writ of replevin.

Judgment affirmed.