Pignolet v. Daveau , 2 Hilt. 584 ( 1860 )

Daly, First Judge.

The summons was irregular. It was not accompanied by the service of a copy of the complaint, and did not state that the complaint was, or when it would be, ffled. The letter of Morange was a notice of appearance. Baxter v. Arnold, 9 How. 445; Quick v. Merrill, 3 Cai. 133. It was signed by him as the defendant’s attorney, and informed the plaintiff’s attorney that he, Morange, would waive the irregularity in the summons, and accept, as the defendant’s attorney, the service of a copy of the complaint. The proper course for the plaintiff’s attorney, then, was to serve a copy of the complaint upon Morange, and upon such service being made, the defendant would have been precluded from taking any advantage of the defect in the summons. This the plaintiff’s attorney did not do, but offered to serve a copy of the complaint upon Morange if he would sign a formal notice of retainer by and appearance for the defendant, together with a written demand that a copy of the complaint should be served upon Mm, as the defendant’s attorney. This Morange refused to do; and certainly this one formality was unnecessary, as Morange had already given notice of appearance, and demanded, in writing, a copy of the complaint. Upon this refusal the plaintiff’s attorney served a notice upon Morange, requiring him to disregard the summons served upon the defendant. This was, in effect, a notice of the discontinuance of the suit, which was inoperative without the payment of costs, as the defendant had appeared by attorney. McKenster v. Van Zandt, 1 Wend. 13. The defendant’s attorney now moves to set the summons aside for the irregularity.

Motion granted, with costs.