Houlton v. Gallow , 55 Minn. 443 ( 1893 )

Mitchell, J.

The summons in this action was regular upon its face, and was served in the manner provided by statute. It stated that the complaint was filed, but in fact it had not been, and no •copy was served with the summons. On this ground the defendant made a motion to have the service of the summons set aside, and the action dismissed. The motion was confined to this specific purpose, but the attorneys signed the notice of motion as “attorneys for defendant,” without expressly limiting their appearance to that purpose. This the plaintiff, in the original brief, claimed amounted to a general appearance, which waived all defects in the-service of the summons. Had the defect compláined of gone to the jurisdiction of the court over the person of the defendant, there might possibly have been something in the point, although it will appear from the general tenor of our decisions on the subject that, in determining whether an appearance was general or special,, we have looked to the purposes for which it was made, rather than to what the party had labeled it. But it is settled by Millette v. Mehmke, 26 Minn. 306, (3 N. W. 700,) that the court acquired jurisdiction by the service of the summons, and that the failure to file or serve the complaint was a mere irregularity, the remedy for which was by motion to set aside the service; and it was never held that an appearance by making a motion for the sole purpose of' taking advantage of an irregularity amounted to a waiver of it. So far from being a waiver of the irregularity, it is just the reverse-of it. In a supplemental brief, counsel seem to admit this, and to abandon their original ground, but claim that the court did not,, under the circumstances, exercise a proper discretion in setting aside the service of summons. The only showing made by plaintiff in opposition to the motion was an affidavit by one of his counsel that, at the time he issued the summons, he was informed and believed that defendant was about to leave the state before he could prepare and file a written complaint, and that defendant would be absent from the state a long time, and that he (counsel) after-wards prepared a complaint, without unnecessary delay, which was filed on the second day after the service of the summons.

(Opinion published 57 N. W. Rep. 141.)

Assuming that a showing might be made which "would require the court to refuse to set aside the service of the summons notwithstanding the irregularity, yet this affidavit failed to make out any such case. Foraught thatappeared on the hearing of the motion, the defendant might still have been within the state, so that new service might have been made on him.

Order affirmed.