Norris v. Frowine

Matjck, P. J.

This action is heard upon a demurrer to the amended petition of the plaintiffs, by which they seek to enjoin the execution of a judgment in replevin rendered in the court of a justice of the peace. That the two of the plaintiffs against whom the judgment was rendered were served with process is not denied. It cannot be disputed that the amount of the judgment was within the statutory jurisdiction of the justice, and the appraisement of the property replevined was within the same limits.

The fact complained of is that the summons issued by the justice was such that his jurisdiction never attached. The particular defect thus pointed out was the indorsement made on the summons which read: “Damages claimed $350.” It is not contended that the plaintiff’s bill of particulars claimed more than $300 damages, or that any act of the plaintiff induced the erroneous indorsement. The record is accordingly clear that the plaintiff filed an action within the jurisdiction of the justice, obtained personal service on those whom he desired to sue, and recovered such a judgment as the statute authorized.

'Section 10163, General Gode, requires a summons to issue with a writ of replevin, and Section 10235, General Code, requires all summons issued by a justice of the peace to bear an indorsement of the amount for which the plaintiff will take judgment if the defendant fails to appear. The cases cited by counsel abundantly show that a failure to make the required indorsement is such, irregularity as to warrant a reversal, if error is prosecuted from a default judgment where the indorsement was not so made. We have, however, been cited to no authority that would warrant us in enjoining the execution of a judgment whose only imperfection consisted in the omission of the indorsement. It would seem clear that the law furnishes an adequate remedy by providing for a proceeding in error thereto. 15 Ruling Case Law, at page 864, thus puts it:

“Mere irregularities in the form of process or in the manner of its service do not render a judgment void and open to collateral attack, unless the defect is such as to amount to no service, ancf can only be of avail in a direct proceeding to set aside or quash the process. Thus an obvious mistake in the year in a return of summons will not affect the validity of a judgment based upon 'such summons. Nor does the failure to indorse on a summons as required by statute the amoumt for which judgment would be taken if the defendant failed to answer make the judgment rendered in such action void.”

Yanfleet’s Collateral Attack, page 445, says:

“A judgment is not void because the copy of the summons left for the defendant was not indorsed with the amount for which plaintiff would take judgment upon failure to answer.”

This is the view expressed by Mr. Freeman in his note to Little Rock & Fort Smith Ry. Co. v. Wells, 54 Am. St. Rep., 230, and is the direct holding in Tootle v. Ellis, 63 Kan., 422, 65 Pac., 675.

The other proposition urged, that the property in question was being used to unlawfully transport liquor, might have been an available defense before the justice. If of merit the court of the justice was competent to determine it. A court of equity cannot consider it in a collateral attack.

The demurrer is sustained and the amended petition is dismissed.

Decree for defendant.

Sayre and Middleton, JJ., concur.