Polock v. Hunt

2 Cal. 193

• Court: California Supreme Court
• Decided: April 15, 1852
• Status: Published

Opinion

Chief Justice Murray

delivered the opinion of the Court. The record in this cause is encumbered with trivial and frivolous objections, taken, in some instances, to a proper exercise of discretion by the Court below. The summons issued was in the form provided by the old Practice Act. After many rulings and counter-rulings by the Court, and exceptions by counsel, the Court gave the plaintiff leave to amend his complaint and summons. From this order the defendants appealed. The point on which the defendants seem most to rely is, that the Court had no power to allow the plaintiff to- amend the summons; that if it was defective, the Court could not cure the defect. The Practice Act of 1851 provides that the summons shall contain a notice to the defendant of the nature of the demand; and that unless he appear and answer within the time therein specified, judgment by default will be taken against him. The summons in this case does not contain this notice.

The process of a Court is, to a certain extent, within its own control. The object of the summons is to put the party upon notice of the demand against him. The summons first issued was sufficient for this purpose. If the plaintiff had taken judgment by default without the proper notice required by law to be conveyed in the writ, it would, doubtless, have been error. But this was not done. The Court had power to amend the summons, so as to make it conform to the law in this particular, as it operated no hardship or surprise upon the defendants. It is said that if the summons is worthless, the parties were not properly brought into Court, and the whole proceedings should have been dismissed. This proposition might be true in cases where the writ was radically defective for want of legal sufficiency; but not for want of some immaterial recitation which does not affect the rights of the parties. We have been unable to discover any good cause for which this judgment can be reversed. Great latitude is given to the Courts by our statute, in amending and altering pleadings, &c.; and they are required to administer substantial justice between the parties. In fact, this power is indispensably necessary, in view of the frequent changes made by the legislature in our system of practice, and the difficulty the Courts and the bar experience in obtaining the laws.

Judgment of the Court below affirmed, with costs.

Another similar case, between the same parties, was decided in the same manner; and the judgment affirmed.