Larrisch v. Schaefer

6 Haw. 140

Opinions

Decision of

Judd, J.,

on Motion.

Defendant’s counsel moves to dismiss the summons on the ground that it does not apprise the defendant what the plaintiff seeks — that is, it asks for nothing. Plaintiff’s counsel contends that as the summons issues from the Police Justice, upon an oral complaint, he is not responsible for its defects; and as this case is appealed on the merits, this motion is too late.

I am of the opinion that if the plaintiff files a written complaint, the summons issued by the magistrate need only recite that the plaintiff claims as by the annexed complaint; but if the summons is filled out upon an oral statement — more especially if this is done by the plaintiff’s counsel — it should contain in brief all that is essential to a complaint. In this case there should be in the summons a statement that plaintiff asks restitution of the premises, or that the plaintiff asks that the premises may be restored to his possession.

But the defendant having gone to the trial in this case in the lower court, where this objection could have been made and the defect cured either by amendment on terms or by plaintiff taking a nonsuit, I do not think it just to dismiss the case now, but will allow the amendment to be made. The question of costs to be considered on final disposition of the case.

Honolulu, January 23, 1875.