8 trarily exercised.' And under the provision of the same statute, providing that the court has jurisdiction from the time of filing the complaint, the court may exercise its discretion in granting or refusing leave to issue the summons after the time for issuing it has expired. A complaint which has been served, and which seeks recovery for a certain amount, cannot be amended without further service so as to include, on default, interest accruing after the commencement of the action, or otherwise to enlarge the amount of recovery. But where, in an action to foreclose a mechanic's lien after the service of summons, other lien claimants intervene by stipulation with the plaintiffs, but serve no summons on the owner, the filing of such intervention does not constitute an amendment to the plaintiff's complaint.10 A merely formal amendment of a complaint does not require a new service on a defendant who had not appeared to the original complaint."1 9 § 1046. Requisites of the writ.-The summons shall state: 1. The names of the parties to the action, the court in which it is brought, and the county in which the complaint is filed; 2. A direction that the defendant appear and answer the complaint within a certain time; 3. A notice that unless the defendant so appears and answers, the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon contract, or will apply to the court for any other relief demanded in the complaint.12 A statement of the names of the parties to a suit must be contained in the summons.13 If there are several defendants, it is not sufficient to give the name of one, followed by "et al." The section of the code on this point is mandatory, and not directory merely. Where the plaintiff is ignorant of the name of a defendant, he must state that fact in his complaint, and he may then designate him by any name, and when his true name is discovered, 14 7 Knight v. Fisher, 15 Colo. 176, 25 Pac. 78; Burkhardt v. Haycox, 19 Colo. 339, 35 Pac. 730. 8 Colo. Code Civ. Proc., § 44. Schuttler v. King, 12 Mont. 149, 30 Pac. 25. 10 Goodale v. Coffee, 24 Or. 346, 33 Pac. 990. 11 White v. Hinton, 3 Wyo. 756, 30 Pac. 953, 17 L. R. A. 66. 12 Cal. Code Civ. Proc., § 407; Alaska Codes, pt. 4, ch. 4. §§ 42-53; Ariz. Civ. Code, pars. 1314, 1316; Idaho Rev. Codes, §§ 4140-4144; Mont. Rev. Codes, §§ 6513-6516; Nev. Comp. Laws, § 3121; N. Mex. Comp. Laws, § 2685, subds. 18, 19; Or. B. & C. Codes, § 2201; Utah Rev. Stats., § 2939; Wash. Bal. Codes, $$ 4869-4872; Wyo. Rev. Stats., §§ 3507-3519. 13 Lyman v. Milton, 44 Cal. 630. 14 Id. the pleading must be amended accordingly.15 So where there is no allegation that the name of the defendant is unknown, there is no foundation for the bringing of the action against the fictitious person, and consequently no authority to make the service of the summons by publication. If the name by which a party is known be inserted, it is sufficient. And where a party sues or is sued in a representative character, the character should be stated after his name in the summons.17 If process be served on the right party, the mere fact that it erroneously states his Christian name does not invalidate it.18 The rule of idem sonans applies to the statement of names in a summons, and where a defendant defaults, and the real name is substantially the same as that under which the defendant was served, the default will not be disturbed.19 Under the California statute, prior to its amendment in 1897, the summons was required to state the cause and general nature of the action. While this is no longer required in California, it is still the rule in several of the code states. Where this rule obtains, the summons must state the amount for which judgment is demanded, if the sum sued for is certain in amount or is capable of being reduced to a certainty by computation.20 And if the summons is radically defective in this effect, it will not support a judgment by default.21 In ejectment, if the summons contains no description of the demanded premises, except to refer to the complaint for such description, and two or more of the defendants reside in the same county, and the summons is served on all the defendants in that county, but a copy of the complaint on one only, the summons is sufficient to sustain a judgment by default against those not served with a copy of the complaint.22 And this is so, even though such defendant disclaims any interest in the property under controversy, if nothing appears to show that he was not made a party defendant in good faith." And a summons showing 15 Cal. Code Civ. Proc., § 474. 16 Cooper v. Burr, 45 Barb. 9; Miller v. Stettiner, 7 Bosw. 692. 17 Ryan v. Holliday, 110 Cal. 335, 42 Pac. 891. 18 Welsh v. Kirkpatrick, 30 Cal. 202, 89 Am. Dec. 85; Foshier v. Narver, 24 Or. 441, 34 Pac. 21, 41 Am. St. Rep. 874. 23 19 Gilliano v. Kilfoy, 94 Cal. 86, 29 Pac. 416. 20 People v. Bennett, Abb. Pr. 343. 21 State v. Woodlief, 2 Cal. 242; Porter v. Hermann, 8 Cal. 625. 22 Calderwood v. Brooks, 28 Cal. 151. 23 Mantle v. Casey, 31 Mont. 408, 78 Pac. 591; Mont. Rev. Codes, § 6518. that the action is to recover money and to foreclose liens contains "a statement of the nature of the cause of action in general terms," although it does not show the nature of the liens or for what or on what they are claimed.24 The object of the requirement of the statute as to what the summons shall contain is carried out by a general statement of what is specified in the complaint to which the summons points expressly or by implication of law.25 Thus the omission in the notice in the summons of the amount for which the plaintiff will take judgment on failure to answer, when a certified copy of the complaint served with the summons states the amount, if it be an error at all, is one not affecting substantial rights, and the court should disregard it.26 Where, however, the action is one arising on contract for the recovery of money or damages, the notice of the summons should follow substantially the provision of the statute.27 A merely defective statement of the relief demanded does not render a summons void, provided such statement be not manifestly misleading.28 § 1047. Notice to appear. The summons must contain a notice that unless the defendant appears and answers within the time specified, the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon contract, or will apply to the court for any other relief demanded in the complaint.29 Under this section, it is only where the sum demanded is definite, and is "for money or damages as arising upon contract,' that the plaintiff may take judgment without calling upon the 24 Bewick v. Muir, 83 Cal. 368, 23 R. R. Co. v. Nicholls, 8 Colo. 188, 6 Pac. 389. Pac. 512. 25 Bewick v. Muir, 83 Cal. 368, 23 Pac. 389; Barndollar v. Patton, 5 Colo. 46; Tabor v. Goss etc. Co., 11 Colo. 419, 18 Pac. 537; Sawyer v. Robertson, 11 Mont. 416, 28 Pac. 456; DeCorvet v. Dolan, 7 Wash. 365, 35 Pac. 72, 1072. 26 Higley v. Pollock, 21 Nev. 198, 27 Pac. 895; Schuttler v. King, 12 Mont. 149, 30 Pac. 25. 27 Sawyer v. Robertson, 11 Mont. 416, 28 Pac. 456; Sweeney v. Schultes, 19 Nev. 53, 6 Pac. 44; Odell v. Campbell, 9 Or. 298; Atchison etc. 28 Burkhardt v. Haycox, 19 Colo. 339, 35 Pac. 730. See, also, Swem v. Newell, 19 Colo. 397, 35 Pac. 734. 29 Cal. Code Civ. Proc., § 407; Alaska Codes, pt. 4, ch. 4, §§ 42-53; Ariz. Civ. Code, pars. 1314-1316; Colo. (Mills') Code, § 37; Idaho Rev. Codes, §§ 4140-4144; Mont. Rev. Codes, $$ 6513-6516; Nev. Comp. Laws, § 3121; N. Mex. Comp. Laws, § 2685; Or. B. & C. Codes, § 2201; Utah Rev. Stats., § 2939; Wash. Bal. Codes, §§ 4869-4872; Wyo. Rev. Stats., §§ 3507-3519. court to ascertain or adjudge anything. In other actions, the notice is to the effect that, unless the defendant appears and answers, the plaintiff will apply to the court for the relief demanded.30 Where, however, a copy of the complaint is served with the summons, a notice to the effect that if the defendant fail to appear the plaintiff will "take judgment" against him for the relief demanded in the complaint, instead of "will apply to the court for the relief demanded," is sufficient.31 So, also, where the summons served on defendant stated that the action was to recover a certain sum for services and for certain property sold to him, which would more fully appear in the complaint on file, a copy of which complaint was served with the summons, the summons was sufficient although it did not state the amount for which judgment. would be taken.32 And where the case is a proper one for the plaintiff to take judgment against the defendant for the amount claimed, the summons is not defective in stating that the plaintiff will apply to the court for the relief demanded.33 Although a summons may not give the notice required by statute, that in case of default the plaintiff will take judgment for a specified sum, it is sufficient if enough appears to apprise the defendant clearly of the amount claimed. In the summons, as in all legal proceedings, such abbreviations as are in common use may be used, and numbers may be expressed by figures or numerals in the customary manner. 34 § 1048. In action on contract for money or damages. There shall be inserted in the summons a notice, first, in actions arising on contracts for the recovery of money or damages only, that unless the defendant so appears and answers, the plaintiff will take judgment for the sum demanded in the complaint, stating it.35 A statement in a summons that "the said action is brought to recover judgment against the defendants for the sum of five thousand three hundred and seventy-four dollars and twelve cents, and interest at three per cent per month from November 14, 1863, and 30 Behlow v. Shorb, 91 Cal. 141, 27 Pac. 546; Atchison etc. R. R. Co. v. Nicholls, 8 Colo. 188, 6 Pac. 512; Kimball v. Castagnio, 8 Colo. 525, 9 Pac. 488; Sawyer v. Robertson, 11 Mont. 416, 28 Pac. 456. 31 Clark v. Palmer, 90 Cal. 504, 27 Pac. 375. But see Atchison etc. R. R. Co. v. Nicholls, 8 Colo. 188, 6 Pac. 512 32 Higley v. Pollock, 21 Nev. 198, 27 Pac. 895; Prezeau v. Spooner, 22 Nev. 88, 35 Pac. 514. 33 Schuttler v. King, 12 Mont. 149, 30 Pac. 25. 34 Cal. Code Civ. Proc., § 186. 35 Cal. Code Civ. Proc., § 407, subd. 4. the further sum of eleven dollars and twenty cents, and the costs of this action," is sufficient to answer the requirements of section 24 of the Practice Act (corresponding substantially to section 407 of the Code of Civil Procedure), as a copy of the complaint is served with the summons, and the defendants are thus notified of the general nature and object of the action.36 Relief under this subdivision must be applied only to actions for a definite sum of money as such, and without calling upon the court to ascertain or adjudge anything but the existence or terms of the contract.37 Thus, in cases for goods sold and delivered,38 or for liquidated damages on breach of contract, or for specific sum on breach of contract, or for penalty given by statute, 1 or for money demand. where the plaintiff waives tort.42 So an action on an undertaking in replevin is substantially one for the payment of money, and a summons for a money demand in such a case is proper." 40 39 41 § 1049. Time for appearance. The summons must contain a direction that the defendant appear and answer the complaint within a certain time. A summons which requires the defendant to answer the complaint that "will be filed in the clerk's office on the second Monday after service" thereof, fixes that day as the time when the defendant must answer, and not as the time when the complaint will be filed. A writing directing the defendant to appear and answer "forthwith" is not a summons to appear and answer "on the return day" within the meaning of the Oregon statute;" and a judgment in default thereof is void.45 If judgment by default is entered before the time fixed for answering expires, it will be reversed on appeal. A summons duly served on a defendant, which notifies him of the court, term, time, and place where he is required to appear, and that he is required to answer the claim of the plaintiff, is not 36 King v. Blood, 41 Cal. 317. 37 Tuttle v. Smith, 6 Abb. Pr. 329, 14 How. Pr. 395; approved, People v. Bennett, 6 Abb. Pr. 343; Luling v. Stanton, 8 Abb. Pr. 378; Cobb v. Dunkin, 19 How. Pr. 164; reversing 17 How. Pr. 97; Cook v. Pomeroy, 10 How. Pr. 103, being overruled. See, also, Norton v. Cary, 14 Abb. Pr. 364, 23 How. Pr. 469. 38 Diblee v. Mason, 1 N. Y. Code Rep. 37. 89 Cemetery Board etc. Hyde Park v. Teller, 8 How. Pr. 504. 40 Croden v. Drew, 3 Duer, 654. 41 People v. Bennett, 5 Abb. Pr. 384; Commissioners of Albany v. Classon, 17 How. Pr. 193. 42 Goff v. Edgerton, 18 Abb. Pr. 381. 43 Montegriffo v. Musti, 1 Daly, 77. |