fatally defective because it omits to state the penalty for his failure to appear, the defect being merely one of form, and not of substance. A published summons is not fatally defective for omitting the words "after the date of the first publication of this summons, to-wit," which precede the actual date given as prescribed by statute.47 46 § 1050. Amendment of summons.-Every court has power to amend and control its process and orders, so as to make them conformable to law and justice.48 If a writ be amendable, it will be accorded the same effect, with reference to acts done in execution of it, as if it had been amended." Under section 4869 of Ballinger's Annotated Codes and Statutes, providing that civil actions shall be commenced by service of summons, and under section 4873, providing that a copy of the complaint shall be served with the summons, a return showing service of the complaint, but not the summons, may be amended according to the true service, so as to give the court jurisdiction, if in fact service of the summons was made.50 The court may allow the summons to be amended by inserting a notice to the defendant of the nature of the demand, and that unless he appear and answer within the time specified, judgment by default will be taken against him. But amendments. can only be made by order of the court upon motion.52 Sheriffs have no right, after making a return, to amend it so as to affect rights which have already vested in third parties.53 But courts should exercise great liberality in allowing sheriffs to amend so as to make returns conform to facts, and to correct errors and mistakes. A summons may be amended so as to make it conform to law.55 An officer's return may always be amended to correspond with the facts, in affirmance of a judgment, but never to defeat a judgment.56 Where an amended complaint is filed before the defendants are brought into court, and an amended summons 54 46 Ammons v. Brunswick etc. Co., 5 Indian T. 636, 82 S. W. 937. 47 Stubbs v. Continental Timber Co., 49 Wash. 431, 95 Pac. 1011. 48 Cal. Code Civ. Proc., § 128. See, also, Cal. Code Civ. Proc., § 473. 49 Brann v. Blum, 138 Cal. 644, 72 Pac. 168. 50 Powell v. Nolan, 27 Wash. 318, 67 Pac. 712, 68 Pac. 389. 51 Polock v. Hunt, 2 Cal. 194. 51 52 McCrane v. Moulton, 3 Sandf. 736; Allen v. Allen, 14 How. Pr. 248. 53 Newhall v. Provost, 6 Cal. 87; Webster v. Haworth, 8 Cal. 25, 68 Am. Dec. 287. 54 Gavitt v. Doub, 23 Cal. 79. 55 Pierse v. Miles, 5 Mont. 552, 6 Pac. 347. 56 Chicago etc. Mill Co. v. Merchants etc. Bank, 97 Ill. 294; Mills v. Howland, 2 N. Dak. 30, 49 N. W. is issued which refers to the complaint on file, and not in terms to the amended complaint, the amended summons is not misleading, nor is such reference uncertain or ambiguous. The amended complaint entirely takes the place of the former one, and becomes the complaint.57 § 1051. Form of summons.-The style of summons is generally prescribed by the codes of the respective states. In California, it must run in the name of "The People of the State of California,” 58 and this is the rule also in Colorado.58a A summons issued and signed by the plaintiff's attorney, under the Colorado statute, is not "process" within the purview of the constitutional provision requiring all process to run in the name of the people, although its service is the statutory method of beginning a suit.59 In Oregon, the summons authorized by the code is not within the meaning of the term "process" as defined in section 1227 of the code, and need not run in the name of the state.60 Where at the head of a summons was written "District Court of the Fourth Judicial District," but the summons was issued from the county court and attested by the county judge, it was held that the words at the top were no part of the writ.1 As a general rule, the summons must be signed by the clerk and directed to the defendant, and be issued under the seal of the court, and it is void if issued without the seal. The rule is, however, otherwise in Colorado." Where a summons is issued on a blank to which the clerk's name is printed, his affixing of the seal of the court is a sufficient adoption of the printed signature.65 In Oregon and Colorado, it is sufficient if the summons be subscribed by the plaintiff or his attorney. The summons is generally required to be indorsed with the name of the plaintiff's attorney; but the attorney's name is not 413. See Dunham v. Wilfong, 69 Mo. 355; Montgomery v. Merrill, 36 Mich. 97. 57 Dowling v. Comerford, 99 Cal. 204, 33 Pac. 853. 58 Const., art. vi, § 18; Pol. Code, § 30. 58a Act of April 7, 1885. 59 Comet etc. Min. Co. v. Frost, 15 Colo. 310, 25 Pac. 506. 60 Bailey v. Williams, 6 Or. 71. 61 Crane v. Brannan, 3 Cal. 195. 62 Cal. Code Civ. Proc., § 407. 66 part of the summons 63 Choate v. Spencer, 13 Mont. 127, 40 Am. St. Rep. 425, 32 Pac. 651, 20 L. R. A. 424. 64 Rand v. Pantagraph Co., 1 Colo. App. 270, 28 Pac. 661. 65 Ligare v. California Southern R. R. Co., 76 Cal. 610, 18 Pac. 777. 66 Or B. & C. Code, § 52; Rand V. Pantagraph Co., 1 Colo. App. 270, 28 Pac. 661. 67 Cal. Code Civ. Proc., § 407; Kan. § 59. so as to render a publication of notice void on account of the attorney's name being omitted, if the record shows that his name was indorsed on the summons.68 Inasmuch as that section of the statute which permits an attorney who is a citizen of another state to become a member of the bar of the state, puts no restrictions on his privileges not placed upon resident attorneys, and was enacted subsequent to section 4870, a summons issued without the state by a non-resident attorney entitled to practice in the state, and naming a place in the state at which service may be had on him, is valid. A summons following the statutory form subscribed by an attorney authorized to issue it, giving, after his name, his postoffice address within the state, is sufficient against a general objection that it is void on its face, raised for the first time on appeal.70 The mere failure to indorse the name of the attorney upon the back of a summons will not invalidate it, where the name appears on the face of the writ." A substantial compliance with the statute is all that is necessary." 72 § 1052. Summary proceedings for obtaining possession of real property. In summary proceedings for possession of realty, the summons must require defendant to appear and answer within three days after service of summons upon him, and that, if he fails, plaintiff will apply for the relief demanded. In all other respects, the summons, or any alias summons, must be issued and returned in the same manner as summons in a civil action.73 A summons in condemnation proceedings must contain, besides the usual parts of a summons, a general description of the whole property, a statement of the public use for which it is sought, reference to the complaint for description of the respective parcels, and, notice to defendant to appear and show cause why the property should not be condemned." 68 People v. Wrin, 143, Cal. 11, 76 Pac. 646. 69 Wagnitz v. Ritter, 31 Wash. 343, 71 Pac. 1035. 70 Id. 71 Shinn v. Cummins, 65 Cal. 97, 3 Pac. 133. 72 Higley v. Pollock, 21 Nev. 207, 27 Pac. 895; Ralph v. Lomer, 3 Wash. 405, 28 Pac. 760; Burkhardt v. Haycox, 19 Colo. 339, 35 Pac. 730. 73 Cal. Code Civ. Proc., §§ 1166-7, as amended 1907; Ariz. Civ. Code, par. 2673; Idaho Rev. Codes, § 5100; Mont. Rev. Codes, § 7277; Nev. Comp. Laws, §§ 3842, 3855; N. Mex. Comp. Laws. 2685, subds. 17, 18; Or. B. & C. Codes, § 5749; Utah Rev. Stats., § 3580; Wash. Bal. Codes, § 5532; Wyo. Rev. Stats., § 4488. 74 Cal. Code Civ. Proc., § 1245; Ariz. Civ. Code, pars. 2453, 2454; Idaho Rev. Codes, § 4140; Mont. Rev. Codes, § 7338; Nev. Comp. 76 § 1053. Action in justice's court.-An action in a justice's court is commenced by filing a complaint," in some states, or by service of summons." Parties may appear and act in person, or by attorney, and any person, except the constable by whom the summons or jury process was served, may act as attorney." At any time after the complaint is filed, the defendant may, in writing or by appearing and pleading, waive the issuing of summons.78 The time specified in the summons for the appearance of the defendant must be as follows: 1. If an order of arrest is indorsed upon the summons, forthwith; 2. In all other cases, within five days, if the summons be served in the city and county, township, or city in which the action is brought; within ten days, if served out of the township or city, but in the county in which the action is brought; and within twenty days, if served elsewhere. A copy of the complaint must be served with the summons, and the return on a justice's summons is presumed to show all that was done by the person making the service.80 § 1054. 79 Justice's court-Service of summons.-The summons may be served by a sheriff or constable of any of the counties of California; but when it is to be served out of the county the summons shall have attached to it a certificate of the county clerk that the person issuing the same was an acting justice of the peace at the date of the summons. A justice's summons may also be served by any male resident over the age of twenty-one years, not a party to the suit, within the county where the action is brought, and must be served and returned as provided by title 5, part 2 (§§ 405-416), of the California Code of Civil Procedure. Summons may also be served by publication under the same circumstances and in the same manner as a superior court Laws, §§ 3121, 3919; N. Mex. Comp. 75 Cal. Code Civ. Proc., § 839. As to sufficiency of complaint in justice's court, see Montgomery v. Superior Court, 68 Cal. 407, 9 Pac. 720; Terry v. Superior Court, 110 Cal. 85, 42 Pac. 464. 78 Cheeseman v. Fenton, 13 Wyo. 436, 110 Am. St. Rep. 1010, 80 Pac. 823. 79 Cal. Code Civ. Proc., § 845, as amended 1907. 80 State v. Harrington, 31 Mont. 294, 78 Pac. 484. 81 Cal. Code Civ. Proc., § 849. The summons cannot be served out of the county wherein the action is brought except when the action is brought upon the joint contract or obligation of two or more persons, one of whom resides within the county; when defendant has contracted to perform the obligation in the county of the action, and resides in another county; when the action is for injury to person or property; when defendant was a resident of the county at the time action was commenced, or in actions of forcible entry and detainer, or to enforce liens on, or to recover, personal property situated within the county.82 § 1055. Alias or additional writs.-If the summons is returned without being served on any or all of the defendants, or if it has been lost, the clerk, upon the demand of the plaintiff, may issue an alias summons in the same form as the original; provided, that no such alias summons shall be issued after the expiration of one year from the date of the filing of the complaint.83 Before the amendment of the above section of the code so as to prohibit the issuance of an alias summons after the time for the service of the original had expired, it was held that the clerk could, on demand of the plaintiff, issue an alias summons after the expiration of the year during which the original was required to be issued.84 If the plaintiff is guilty of laches in failing to serve either the original or the alias summons, the defendant may move to quash, and his appearance for this purpose is not to be deemed a waiver of summons. While the defendant's motion to quash the summons is pending he is under no obligation to obey a second summons correcting defects in the first, when such defects have not been confessed, and the court has not directed such second summons to issue.86 85 After a summons has been served on some of the defendants and returned, the court may order it delivered to the plaintiff for further service on other defendants in the same or another county. A redelivery of the summons without an order of the court is an irregularity, of which the opposite party may avail himself by direct attack, but such irregularity will not render the service void.87 82 Cal. Code Civ. Proc., § 848, as amended 1907. 83 Cal. Code Civ. Proc., § 408. P. P. F. Vol. I-41 53 Cal. 245; Coombs v. Parish, 6 Colo. 296. 86 Farris v. Walter, 2 Colo. App. 450, 31 Pac. 231. 87 Hancock v. Preuss, 40 Cal. 572. |